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Constitutional – Heritage Act – Supermajority Requirement – First Impression – Flag & Monument Removal Provisions

Absent a constitutional provision to the contrary, the General Assembly acts and conducts business through majority vote. Therefore, the requirement of S.C. Code An. § 10-1-165(B)—that the Heritage Act could only be amended or repealed by a supermajority—is unconstitutional.

However, we uphold the constitutionality of the Heritage Act’s substantive provisions. Section 10-1-165(B) is unconstitutional but severable from the constitutionally sound remainder of the Heritage Act.

The Heritage Act of 2000 represented a compromise that allowed the Confederate battle flag to be removed from atop the state house but prohibited the removal or renaming of other monuments. The act also said it could be amended or repealed only by a supermajority of the General Assembly.

Supermajority Requirement

Respondents argue that petitioners’ challenge to the supermajority requirement is not ripe for judicial review because the General Assembly has not voted on any attempt to amend or repeal the Heritage Act since its enactment in 2000. We disagree. The supermajority requirement has significant potential to dissuade members of the General Assembly from attempting to amend or repeal S.C. Code Ann. § 10-1-165. Petitioners’ challenge is ripe.

This court has not specifically addressed whether one legislature can restrict a future legislature’s authority to enact, amend or repeal legislation. However, in Manigault v. Springs, 199 U.S. 473 (1905), the U.S. Supreme Court addressed legislation which required a signed petition before the General Assembly could enact legislation providing for any private purpose.

The Supreme Court summarily rejected the argument that the 1885 General Assembly could restrict the plenary power of the 1903 General Assembly. Similarly, we hold the supermajority requirement is unconstitutional. Absent a constitutional provision to the contrary, the legislature acts and conducts business through majority vote.


We have no doubt that the supermajority requirement was an essential part of the compromise of the Heritage Act. However, members of the General Assembly and its legal counsel recognized the risk this court would hold the procedural supermajority requirement invalid upon a proper challenge. Recognizing this risk, the General Assembly included a clear and effective severability clause.

Thus, it is apparent that while the entirety of § 10-1-165 was essential to reach the compromise necessary to achieve the primary purpose of the Heritage Act—removal of the Confederate flag from the dome of the state house—the General Assembly intended that if the supermajority requirement were found invalid, then the rest of the act—including the section which removed the flag from the dome—would stand.

Renaming Prohibition

Section 10-1-165(A) prohibits the removal or renaming of monuments or memorials, erected on public property, when those monuments or memorials relate to 10 specified military conflicts and two ethnic heritages: Native American and African-American.

Although S.C. Const. art. III, § 34(IX) prohibits much special legislation, when a classification created by a statute is a reasonable and rational way to further the goal of the statute, the classification does not mean the statute is unconstitutional special legislation.

Removal of the Confederal flag from the dome of the state house was one of the most important, and difficult, political achievements in the state’s history. The “pro-flag” legislators agreed to remove the flag, but in anticipation of further efforts to rename or remove other memorials, agreed to do so only if those memorials would be protected. The “anti-flag” legislators agreed to such protection, but only in exchange for removal of the flag from the dome of the capitol. Thus, the inclusion of restrictions on future renaming and removal was essential, and reasonable, to achieve the compromise and primary purpose of the Heritage Act.

We also find a rational and reasonable basis for the protection of the listed wars and ethnic groups. The wars included are the principal wars in which South Carolinians had participated on behalf of the United States as of the year 2000. The ethnic groups, African Americans and Native Americans, are the groups that have suffered most from discrimination and other mistreatment at the hands of the state, its businesses and its citizens. In a compromise centered on the removal of what many view as a symbol of racism, we hold the protection of monuments and memorials dedicated to these two heritages is reasonable.

Subsection 10-1-165(A) is not unconstitutional special legislation.

Nor does § 10-1-165(A) violate Home Rule. It does not apply to a specific county or geographic area; thus, it is a general law with respect to territorial classifications. Importantly, the subject matter of the legislation is not peculiar to any political subdivision.

Declaratory judgment issued.

Pinckney v. Peeler (Lawyers Weekly No. 010-059-21, 22 pp) (John Few, J.) Matthew Terry Richardson and Gerald Malloy for petitioners; Kenneth Moffitt, John Potter Hazzard, James Keith Gilliam and Bradley Scott Wright for respondents; Alan McCrory Wilson, Robert Cook, Emery Smith and Robert Merting for amici curiae. S.C. S. Ct.

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