City of Charleston attorneys respond to Attorney General’s letter regarding “Robert E. Lee Memorial Highway” marker 

February 24, 2022

Today, city of Charleston legal staff sent the attached letter to Attorney General Alan Wilson regarding the removal of a marker for the “Robert E. Lee Memorial Highway.” In the letter, city attorneys lay out some of the most powerful reasons they believe the removal was wholly consistent with the plain language of the Heritage Act, as well as state Supreme Court precedent involving the Act.

In summary, the argument is as follows:

  1. The Heritage Act is four sentences long, and the first two sentences define precisely what is prohibited under the law, neither of which apply here. Those sentences read: “(A) No Revolutionary War, War of 1812, Mexican War, War Between the States, Spanish-American War, World War I, World War II, Korean War, Vietnam War, Persian Gulf War, Native American, or African-American History monuments or memorials erected on public property of the State or any of its political subdivisions may be relocated, removed, disturbed, or altered. No street, bridge, structure, park, preserve, reserve, or other public area of the State or any of its political subdivisions dedicated in memory of or named for any historic figure or historic event may be renamed or rededicated.”

  1. When a statute (such as the Heritage Act) is clear, courts enforce the statute based on the plain meaning of the words they contain – i.e., such a statute would not be interpreted so as to change or expand that plain meaning. Applying this well-established legal principle to the Heritage Act makes clear the legality of the city of Charleston’s actions in this matter.

  1. The first sentence of the Act (see “1” above) states that “monuments or memorials” to certain specific wars or to Native American or African American history cannot be “relocated, removed, disturbed, or altered.” And while it is true that General Robert E. Lee served in the War Between the States, he is not himself that war, any more than Colonel Strom Thurmond is World War II, despite the senator’s indisputably valiant service in that conflict. In short, the plain meaning of war is just that – war.

  1. As to the second sentence of the Act (again “1” above), it plainly prohibits only renaming and rededication.  It does not prohibit relocations, removals, disturbances or alterations. Accordingly, although Robert E. Lee was an important “historic figure,” and the highway was — assuming that news accounts of the era are accurate — “dedicated” and “named” in his memory, at no time has the city of Charleston attempted to rename or rededicate the Robert E. Lee Memorial Highway.

  1. A 2021 Supreme Court case discusses the precise wording of Heritage Act and reiterated the named things that subsection 10-1-165(A) protects and those it does not protect. Pinckney v. Peeler, 434 S.C. 272, 294, 862 S.E.2d 906, 918 (2021).  Applying the plain meaning of the Heritage Act and this 2021 decision to the marker removed by the City, it is clear that: 1) the first sentence of the Act does not cover the marker, and 2) the second sentence does not prohibit the city’s actions in this case.