Legal challenges to Confederate monuments attempt what others cannot 

Statues and Statutes

Last month, two individuals were arrested and charged with vandalizing a statue on the Battery dedicated to the "Confederate Defenders of Charleston." The technical charge was "damage to real property," a likely misdemeanor that will carry no jail time. The incident was notable especially in light of discussions in this community about the propriety of Confederate-related monuments (particularly the Calhoun monument in Marion Square) and the constitutionality of the state's Heritage Act, which protects these monuments.

The charge and the penalty likely would have been the same if the two individuals had spray painted grafitti on the side of City Hall or broken windows at the city's Visitor Center. A "damage to real property" charge does not distinguish between politically-motivated vandalism and vandalism for the hell of it.

To be sure, this particular statue was not vandalized just for the hell of it. There is little doubt that vandals chose this target as a clear expression of disapproval of Confederate monuments erected all over the state. This statue, dedicated to the "Confederate Defenders of Charleston," begs several questions: Were the soldiers to which this statue was dedicated really defending Charleston? Didn't the South fire the first shots on Fort Sumter? Why is a statue dedicated to the losing side still erected despite defeat? Is it not fair to consider the firing on Fort Sumter a treasonous act?

These are all legitimate questions, and questions that any objectors to these monuments could legitimately raise. They all sidestep the real reason that many of these statues were raised, as an expression of white supremacy at times such as the turn of the century and after Brown v. Board of Education when the civil rights movement was just getting started.

Vandalism is not the ideal way to protest the continued presence of these statues and monuments, but the sentiment is understandable. People who feel strongly about the messages these statues convey are limited in how they can express their disapproval about them. Imagine statues venerating George Custer being erected on reservations inhabited by Native Americans. It is not difficult to surmise why different races or ethnic groups might feel very differently about statues of historical significance being placed in prominent areas where they live. This was the reason statutes were utilized in the first place.

There are various legal challenges presently ongoing seeking to challenge the Heritage Act, which protects war monuments across the state. The state's Heritage Act makes it illegal to remove monuments without first receiving a two-thirds majority in both chambers of the General Assembly. There is an ongoing federal case questioning the constitutionality of this law, as well as the manner in which it is being applied. The chances of a federal judge overturning this statute is a lot more likely than the South Carolina legislature voting to take down Confederate monuments any time soon, or that vandalism of a monument is going to lead to a decline in public support for such monuments.

Removing Confederate monuments from this state will be an uphill battle, as evidenced by the painstaking struggle to remove the Confederate flag from on top and in front of the Statehouse. The hope is that the legal attempts to achieve this will succeed in a way that illegal means never could.

Dwayne Green is a former city attorney from Charleston who focuses on litigation, municipal, and zoning issues.


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