South Carolina’s Constitutions

By C. Blease Graham

 

The Influence of Colonial Charters

 

Lord Bryce observed, “The State Constitutions are the oldest things in the political history of America,”[1] since they are linked to the royal colonial charters that created the earliest English settlements. South Carolina’s first written constitution in 1776 reflects influences well underway before the permanent settlement of Carolina colony more than a century before.[2] 

The English monarch issued colonial charters to create trading companies empowered to conduct commercial ventures for benefit of the crown and officials of the companies. One example is the charter for the East India Company, granted by Queen Elizabeth, December 31, 1600, which constructed a relatively democratic organization. It empowered a general assembly of the whole company to elect a governor and a deputy and a council of twenty-four members. The company evolved into a closed membership, but the principles of election of members and of defined powers for the chartered company relative to the Crown were established. 

The East India Company had no direct relations with commercial activities in America, but the practice of a written charter was used for undertakings in the New World. For example, the successive charters for “The Treasurer and Company of Adventurers and Planters of the City of London for the First Colony of Virginia,” first initiated in 1606, evolved into a written ordinance by 1621 which defined a legislative assembly composed of governor, council, and burgesses.[3]  The governor and council were appointed by the London Company. The freemen elected two representatives, or burgesses, from each plantation. The governor had a veto over the assembly and the company court in England received all acts of the assembly.  But, the company court could not issue an order unless the assembly agreed.

Carolina Colony was similar since it had a charter, but different because governing power was centered in the proprietors. The proprietors, or their designees, were empowered to, among other things, create offices and fill them, establish courts and commute sentences or pardon offenses, designate political subdivisions, incorporate ports and towns, raise troops and wage war, and collect fees and taxes. Importantly, settlers were allowed to advise or assent in the governing decisions of the proprietors and settlers were subjects of the English Crown with all the rights of a resident in England.[4]

The tradition of a written charter, begun first with the East India Company, was continued in the American colonies as a basis for grants of power and legislative actions based on written documents. The colonial charters had the cumulative effect of establishing a general type of government in which a governor discharged executive powers with the help of a deputy. Judicial powers were exercised by a council in concert with the governor. Legislative powers were vested in an assembly composed of elected representatives of the freemen as well as the governor and council. The written charters and laws ultimately became evidence of guaranteed constitutional rights which formed the basis for escalating disputes with the English Crown that culminated in the American Revolution in 1776.

The following sections trace the colonial developments in South Carolina and identify the major influences on South Carolina’s first state constitution.

The Fundamental Constitutions

 

The colonial proprietors,[5] called Lords Proprietors, were allowed by their royal charters to develop a code of laws for the colony with the inhabitants’ advice and consent. John Locke, later a noted English political philosopher, was secretary and physician to one of the Lords Proprietors, Anthony, Lord Ashley. Locke collaborated in the initial design of an approach to social and governmental structures in the colony. The design came to be called the Fundamental Constitutions. Five major versions were developed between 1669 and 1698.

The Fundamental Constitutions never really worked in the colony. The Lords Proprietors lived in England and leaders in Carolina colony were left to their own devices for the most part.  With formal political power in remote hands, the colonists gradually won more and more concessions from the proprietors. Soon, they used only the parts of  the Fundamental Constitutions that seemed to fit the local situation in colonial Carolina. Nevertheless, the tone of the arrangements did much to set a perspective on the society and government of South Carolina as a colony and eventually as a state. 

The conscious attempts in the Fundamental Constitutions to create a nobility in the new colony gave South Carolina social and political order a “very English” flavor. Although the Lords Proprietor’s plan for a colonial nobility may have reflected their ideals of social stability under the restored English monarch, it also became a practical selling device to selected individuals attracted to the possibility of owning a large tract of land and the privileges presumed to go with it.[6]

Details of The Fundamental Constitutions

 

The oldest of the eight Lords Proprietors was to be called palatine. When he died, the next oldest was to take his place, and so on. In the proposed design, the other seven Lords Proprietors were assigned by lot to seven other offices:  admiral (ports, navigation); chamberlain (ceremonies, vital statistics); chancellor (custody of state seal, treaties, Indian matters); constable (military affairs); chief justice (criminal and civil matters); high steward (foreign and domestic trade, markets, public works); and treasurer (public revenue and treasury). 

The palatine was the head of the palatine’s court. The palatine’s court was the authority in the colony in place of the king and it was to supervise the laws made by the colonial parliament. The palatine and three other proprietors made a quorum for the court. The palatine was to appoint a colonial governor who had actually to live in the colony as the proprietors’ representative. Each of the remaining proprietors had the right to appoint a representative deputy to the colonial parliament.

The Fundamental Constitutions provided for a two-house parliament to make and revise laws. The upper house was to be composed of the seven deputies of the proprietors, seven of the oldest noblemen, and seven men chosen by the lower house. The lower house, the Commons House of Assembly, consisted of representatives of the different counties and towns. The proprietors were given power by the charter to create counties; to build towns, cities, and forts; to establish a judicial system; to train soldiers and to wage war when necessary; and to confer titles of honor.

The charter also required that settlers be allowed to worship in the church of their choice.  The Fundamental Constitutions required belief in God and regular worship, and affirmed the duty of a citizen to swear to the truth if called upon. Although the Fundamental Constitutions allowed full freedom of religious exercise and belief, it is probably accurate to say that the Church of England was intended by the Charter as an established church. The proprietors had the right to appoint ministers to all churches in the colony, but settlers could join churches other than the Anglican church if they wished.[7]

The Fundamental Constitutions also included provisions for structuring a nobility. The order of the nobility was to be based on the amount of land an individual had in grants from the king. All of the territory was to be divided into counties. Each county was made up of eight signiories (the Lords Proprietors’ domains), and eight baronies (the nobility’s domain).  There were three titles and authorized land amounts for the nobility:  a Landgrave was to have 48,000 acres;  a cassique (pronounced:  cass - eek) commanded 24,000 acres;  and a baron 12,000 acres. The oldest proprietor, the palatine, was the supervisor and highest ranking noble.  Under the nobility at the base of the social hierarchy were serfs (leet-men).  Tenants and their children were bound to the soil and could move only with the noble’s permission.

The nobility envisioned in the Fundamental Constitutions never materialized. Many reasons may be speculated as the cause, for example, the Lords Proprietors did not live in the colony; they lived in England and were unable to follow up on their design. Also, the New World spirit did not seem consistent with the ideals of a nobility with its potential for repression of lower ranks. Neither did regular settlement patterns emerge to provide concentrated populations for meaningful recognition of a colonial nobility. Three counties—Berkeley (including present-day Charleston), Craven, and Colleton—were formed, but Craven remained sparsely settled.  These first colonists may have been more interested in making money and enhancing their business reputations than they were in establishing any grand scheme for organizing their society as a nobility and their state to reflect a social caste system for a free citizenry. 

The proprietors ordered in 1683 that the twenty-member parliament be elected. The two populated counties were to elect ten members each, rather than all twenty from Charles Town (later Charleston). The orders were largely ignored. Charleston continued to dominate and the proprietors could not do anything about it.  The proprietors strained relationships further by objecting to an act of the colonial parliament that protected colonists from prosecution for debt incurred outside the colony. In the original land grants, the proprietors had permitted annual rents to be paid either in money or merchandise. Now, they insisted on payments only in money. Because money was scarce in the colony, the settlers continued to resist through the influence of their parliament.

In 1685, a parliament of eight deputies and twenty elected representatives met to consider the proprietors’ decision to put into effect a new constitution, proposed by the proprietors in 1682.  Twelve elected members of the parliament walked out, claiming support for the existing version of the Fundamental Constitutions of 1669.  The remaining members of the parliament under a newly appointed governor’s leadership proceeded to pass all the laws. By 1686, this left-over parliament was concentrating on an invasion of the Spanish territory to the south (contemporary south Georgia, north Florida) and causing internal tensions by ignoring internal colonial affairs and protests even more.

The Fundamental Constitutions became obscured on many fronts by the continuing struggles between the old settlers, new settlers, and the proprietors.  For example, trade between the colonies and transportation of goods in vessels other than English ones were prohibited by English laws. The colonists thought their charter and the Fundamental Constitutions allowed them to trade as they wanted. When a Charles Town court overturned the English revenue collector as he tried to enforce the navigation laws, the English king turned on the proprietors.  The colonists added to pressures by demanding more independence, which put the proprietors under more strain and the people in closer allegiance with the king.[8] 

Colonial Government Under the British Crown

 

The problems that plagued the proprietors as they attempted to implement the Fundamental Constitutions finally caught up with them in 1719 when the colonists declared themselves independent.  The formalized social structure envisioned in the Fundamental Constitutions, however, laid the groundwork for establishing and continuing political stability.  This groundwork reinforced a coastal, agricultural aristocracy with the belief that its prominence and status gave it power and jurisdiction over new arrivals as well as settlers in the Upcountry.

In 1729, the colonial government was transferred from the Lords Proprietors to the British government.  Governing power was left in the governor, a council, and an assembly.  The established systems for administering land grants, finance, defense, courts, and justice were basically left intact.  The governor was the king’s representative and was appointed by him.  The council became like the English House of Lords.  It was appointed by the king and functioned as an advisory board to the governor.  The assembly, or Commons House, was like the English House of Commons.  It consisted of elected representatives.  The governor could convene or dissolve the assembly and veto its acts.  Once approved by the governor, laws had to be sent to England to be approved by the king before they could be enforced officially.

South Carolina began to prosper.  Rice became a major source of wealth, along with indigo and silk and settlement expanded.  In 1747, the white population was 25,000 and the slave population was 39,000.  But, the mood of the colony shifted decidedly.  The interests of the Crown became supreme over local interests in the colony, in opposition to the colonists’ view that the Crown had received only the power originally held by the proprietors. 

The shift in mood may have been due perhaps as much as for any reason to a change in the English king.  Under George II, South Carolina was treated quite favorably and given extensive considerations.  The sons of South Carolina planters were generally educated in England.  There were frequent and affectionate references to England as the “mother country.”  Under George III after 1760, the number of English officials moving into the colony increased steadily.  The colonists disagreed with many of the decisions of the British Parliament—such as the Stamp Act of 1765, though it was repealed in 1766--and subsequent taxes on products such as glass, paper, and tea.  The opposition was expressed by resolutions of the Commons House.

The colonial legislature led and consolidated public opinion against British governance of South Carolina by advocating the rights and privileges of the settlers.  The executive department supported the prerogative of the Crown.  Fledgling political parties, or factions, formed around these focal points.  Supporters of the executive were an “administrative” party, composed of those appointed to positions, viz., governor, the council, and others, by the Crown, successful individuals who profited from dealings with the government, and believers in executive control.  The “people’s” party flocked around the Commons House in the belief that government should express the popular will, at least of the colonial landholders.[9]

The actions of the colonial Commons House of Assembly had, over time, become increasingly at odds with the intentions of the Fundamental Constitutions and with the orders of royal governors.  After the mid-1700s, the Commons House arguably took over from the royal governor and the royal council.  Equally arguably, it was just as reluctant as the “government” party to decentralize its authority within the state.  It avoided creating significant units of local government by providing instead for limited local government by a legislative commission for each specific area or problem.  The colonial controversies over imperial versus colonial, statewide versus local, executive versus legislative, and appointed versus elected continued into the formation of state constitutions.

Constitutions After Statehood:  An Overview

 

South Carolina adopted its first state constitution March 26, 1776.  Since then, it has had six more (1778, 1790, 1861, 1865, 1868, and 1895).  As highlighted in Table 1, some of the constitutions (1790, 1868, 1895) have been more extensive and politically significant than others.

The major constitutions were adopted at critical turning points in the state’s history:  (1) in 1790 after the state entered the federal union;  (2) in 1868 during Reconstruction;  (3) in 1895 after general economic distress.  Although a totally new constitution has not been proposed specifically since then, significant revision and modernization of the 1895 constitution have been ongoing since 1968 in response to federal civil rights policies and practical state and local reform pressures.

Revolutionary Era Constitutions (1776, 1778)

With pending revolution, state affairs were assumed by a Provincial Congress.  It formed a committee to draft a plan of government for the state.  South Carolina became a free and independent state on March 26, 1776, more than three months before the Declaration of Independence, when the state’s Provincial Congress adopted its committee’s report.  

The Provincial Congress dissolved into a General Assembly.  The General Assembly was formed into two houses.  The lower house was elected popularly and in turn elected thirteen of its members as a legislative council or upper house.  It also elected a chief executive, called president, a vice president, and a chief justice.  The president had a veto power over legislation, but could not be re-elected after a specified term.  Practically, political power stayed firmly in legislative hands, and legislative representation did not change significantly.

The new constitution tried to deal with potential political differences between the Upcountry and Lowcountry, but it did not go very far.  The Upcountry area had a large, white population, but was able to elect only 64 of the 202 members of the General Assembly, or a little more than 30 percent.[10]

In 1778 some modifications were made by the General Assembly in the state’s second constitution.  “Governor” replaced “President” as the name of the state’s chief executive, but the legislature continued to elect the governor as well as the lieutenant governor.  The representation imbalance in the legislature was adjusted so that the Upcountry share approached 40 percent.[11]  The upper house was no longer a legislative council;  it became a senate.  The new senators also were elected popularly. 

In the process of constitutional change, the Anglican Church lost its special role in the government.  All of the organized Protestant congregations became part of the established church, but none of them, Anglican and non-Anglican alike, were to get any financial support from the state as the Anglican church had in the past.  With the separation of church and state after the Revolution, church officials could no longer maintain vital statistics, register voters, or perform other duties of state that now devolved onto the government.

Despite the outward appearance of a comprehensive governmental structure, the reality of government remained somewhat elusive.  Charles Town (Charleston) was captured by the British in 1780, and the British controlled large chunks of territory all across the state.  British military occupation had mobilized the Upcountry. 

British military regulars often dealt with native partisan sympathizers by burning down their houses and barns, killing their livestock, and destroying their possessions.  The British generated additional enemies by not being content with just passive conduct by the occupants of their conquered territory.  Instead, they demanded that inhabitants actively support their efforts,[12] a policy that mobilized the Upcountry against them. 

Whether active in a partisan militia or forced into reluctant participation in public life as apparent British subjects, the Scotch and Irish people of the backwoods found themselves more deeply involved in state affairs during and after the Revolution.  They developed a hunger to get involved in state government.  Among their interests were equitable legislative representation and the redevelopment of legislative activity.  Interrupted by war, the General Assembly did not meet until the last stages of the war (January 1782) at Jacksonborough, a settlement about thirty miles southwest of Charleston on the Edisto River.[13]

The Jacksonborough legislature provided a new feeling of achievement and success for the state’s elite.  They had been physically challenged by organized outsiders and agitated by economic hardship, but they had won against heavy odds.  Speeches at Jacksonborough heaped praised upon South Carolina’s heroic Revolutionary War generals:  Thomas Sumter, Francis Marion, and Andrew Pickens, a significant Upcountry leader.  Even the militia came in for congratulations.  Continued physical and economic challenges in the nineteenth-century evoked similar legislative admiration of militaristic actions.

After the close of the Revolutionary period, the General Assembly focused on such problems as confiscating the estates of British supporters.  Emotions surrounding the treatment of British supporters was no small problem for the struggling legislators.  Many South Carolinians, prematurely measuring the political winds, concluded that the British had won in 1780 when Charles Town fell.  So, they swore loyalty to Britain.  After the comeback of the Patriots and the expulsion of the British, how were these “friends and neighbors” to be assessed?  The answers ranged from exile to heavy fines, confiscation of property, and even to lynching.[14]

Historian David Ramsey provides an understated description of the contrast in the years after the American Revolution.  “The … years of war in Carolina [1776-1782] were followed by … years of disorganization [1783-1790], which produced such an amount of civil distress as diminished with some their respect for liberty and independence ... ”.[15]  Nevertheless, helped by a need to focus on economic decisions formerly left to the British Board of Trade, South Carolinians soon forgot about punishing each other and generally set about a whole new set of issues. 

Significant economic and social changes lay behind events that converged on the new constitutional arrangements devised in 1790.  The mainspring for change was the continuing imbalance in legislative representation that gave the overwhelming advantage to the Lowcountry.  Before 1790, even the political symbolism appeared tarnished—the legislature sat in Charleston, so it seemed foreordained that Charlestonians and their associates would have their way against everybody else. 

Nevertheless, the legislature relocated the capital from Charleston and created a new one in Columbia in 1786, the geographic center of the state, to symbolize increased statewide unity.  In 1787, the General Assembly banned the importation of new slaves.  On May 23, 1788, South Carolina ratified the United States Constitution.  In the 1790 legislative session, the first in Columbia, the General Assembly ratified another state constitution, its third, but this time a more significant constitution that remained in force until 1861.  The 1790 Constitution was framed by a convention of delegates specifically elected by the “People of the State of South Carolina.”

The Constitution of 1790

                       

In many ways, the 1790 Constitution recognized the need to conciliate the interests of two geographic sections, Lowcountry and Upcountry, and two distinct groups, aristocratic planter and backwoods farmer.  At one pole was a century-old, established agricultural aristocracy that thought it had the power and responsibility to define the terms by which it conveyed its privileges to others.  At the other pole was an emerging population mass that demanded democratic solutions based on perceptions of popular sovereignty and personal liberties validated by the Revolution.  As part of the American constitutional base, the 1790 constitution may be one example of “the mediating force between the pressures of politics found universally in all political systems.”[16]

The Upcountry (defined at the time as the “upper district”—the judicial districts of Cheraw, Camden, Ninety Six, and Orangeburg) led the charge to get the General Assembly to authorize a constitutional convention.  The Lowcountry “district” made of the judicial circuits of Georgetown, Charleston, and Beaufort defended the status quo.  Since the population differences were “upper” 111,534 white inhabitants versus “lower” 28,644 white inhabitants,[17] representation at the convention was unequal.  Each election district sent a number of delegates equal to its number of representatives in both houses of the legislature.  The Lowcountry aristocracy was in complete control.            

The constitution of 1790 continued colonial legislative traditions, but it also reflected the conflicts and accommodations of the ideals of the American Revolution between the wealthy planters and slave economy of the Lowcountry and the white, small farmers typical in the Upcountry.  The triumph of the established Lowcountry interests are demonstrated by the 1790 provisions for representation according to wealth and population, a governor without veto power, and separate “upper district” and “lower district” court divisions.  After primogeniture[18] was abolished and religious equality recognized, the new constitution placed political power in the hands of a propertied, slave‑holding aristocracy that exercised its power through the legislature.  Social division came quickly to be treated as a dangerous political threat in South Carolina’s fragile post‑Revolutionary political order. 

The 1790 constitution firmly instilled aristocratic control and provided for its regular and authoritative exercise through government and politics.  David Duncan Wallace characterizes it as “aristocratic stability.”[19]  The key to aristocratic dominance was the institutionalization of political control by white male owners of land and slaves.  A House member had to own 500 acres of land and 10 slaves in his district.  One could also qualify as a House member by owning 150 pounds sterling worth of debt-free real estate or, if not a resident of the parish, 500 pounds sterling.  Senators had to have twice as much worth in each circumstance.  Voter registration was limited to a male who could vote in any district where he owned fifty acres of land or a lot in town or in his residential district if he paid three shillings sterling tax there.  Although primogeniture was abolished, the qualifications to vote or be elected to the legislature were not as restrictive in any other American state.  Perhaps because of the type of person who could go to the General Assembly or because of the power centered in the legislature, South Carolina rapidly became one of the most influential states in the new American Union.

The power of the 1790 legislature was virtually complete over all matters of government in South Carolina.  The separation of church and state was complete.  The legislature made all of the laws and elected the candidates for all other major offices.  A governor with no veto power, presidential electors, United States senators, and even many local officials were elected by legislative, not popular vote.

Wallace suggests that the system worked because the slave-holding class needed constant protection, not only from forces of change outside the state, but changes within as well.  The established interests in the state needed loyal representatives in the legislature, so they selected themselves.  The officers of the state needed to be controlled so they could not upset these interests, so the self-selected legislature elected them too.  The resources of the landowners or persons of wealth serving as legislators allowed them enough personal time to attend to legislation and other public matters.  Wallace concludes that “the mere business man was long made to know and keep his place by the landed aristocracy and the bar ... .”[20]

The political culture enshrined by the 1790 constitution was challenged little until the 1860s.  Events surrounding the lifestyles of prominent Charleston families of the time illustrate the values of aristocracy and patriotism underlying the continuity of South Carolina politics, economics, and society.[21]        

Secession and The 1861 Constitution

 

The Secession Convention met in Columbia in December 1860, but adjourned to Charleston because of a case of smallpox just across the street from Columbia’s First Baptist Church where the convention met.  South Carolina’s Ordinance of Secession was adopted and signed in Charleston on December 20, 1860.  The Secession Convention also made some changes in the wording of the 1790 constitution to accommodate withdrawal from the Federal Union.  The constant and total military mobilization of the state during secession placed concerns for the operations of government as much in the hands of military officers as elected officials.  Nevertheless, elections to the legislature were held and the legislature proceeded to elect the governor as always.

One might maintain that there was no new state constitution because the existing provisions for internal governance were not changed significantly.  However, once South Carolina seceded from the Union in 1860, the existing state constitution did exist outside the United States Constitution and thus is usually counted separately.   

South Carolina soon dispatched commissioners to other states to invite them to meet to organize a new Confederate nation based, in its view, on a proper interpretation of the United States Constitution.  A southern convention was convened in Montgomery, Alabama in February, 1861 to frame the new Confederate constitution, elect a president, create a Congress, and put into effect the laws of the United States with which it agreed.  The members of the Confederate cabinet could sit, but not vote in the Confederate congress.  The Confederate president was limited to one six-year term and had an item veto on appropriations bills.  To adopt appropriations not requested by its president, the Confederate constitution required a two-thirds vote of its Congress. 

Many of South Carolina’s ideas of a good national constitution were not enthusiastically received at the southern convention.  South Carolina tried and lost in efforts, among others, to prevent appeals from a state Supreme Court to the Confederate Supreme Court, to count all slaves when defining the population to apportion representation (since South Carolina had a tremendous slave population), to require state legislatures to elect presidential electors (South Carolina was the last state to allow popular election of presidential electors), and to prohibit admission to the Confederacy of any non-slaveholding state. 

Although the state legislature ratified the new Confederate national constitution, South Carolina did not act with the same enthusiasm as it did when seceding from the United States.[22]  Robert Barnwell Rhett had been an active secessionist and was probably disappointed that he was not made Confederate president.  As editor of the Charleston Mercury, he used the newspaper for a constant and blistering attack on the Confederacy and Jefferson Davis.[23]  Other state leaders joined with Rhett, increasing South Carolina’s sense of isolation in an ill-conceived conflict that would only lead to military and economic defeat and to an immediate necessity to recognize outside influence.   

The Constitution of 1865

 

Once Confederate leaders, such as General Robert E. Lee at Appomattox and General Joseph E. Johnston at Durham, surrendered their armies, South Carolinians began to return home.  South Carolina faced major economic and social problems:  (1) its major cities, Charleston and Columbia, were burned to the ground;  (2) military courts governed the state;  (3) agriculture was revolutionized from slave to free labor, but, without adequate money resources, the roots for sharecropping and the crop-lien system were being laid;[24]  (4) the Freedman’s Bureau reallocated coastal lands and islands occupied by federal troops from 1861, and federal tax policies provided other land for redistribution to freedmen;[25]  and (5) some emigration of citizens to Mexico, to Brazil, and to the western United States.

The task of rebuilding or reconstructing the defeated Confederate states was first attempted by the president of the United States.  South Carolina, like other southern states, was required to rewrite its constitution in order to be readmitted to the Federal Union. President Andrew Johnston appointed a provisional governor, Benjamin F. Perry on June 30, 1865.  Governor Perry’s first task was to find and register eligible voters (those who had taken an oath of allegiance to the United States) in order to elect delegates to a state constitutional convention.  He required that each parish and district (there were no counties) elect as many delegates as it had members in the lower house.  Thus, the legislative powers of the local areas declined somewhat because there was no representation for senators.  Through this arrangement, Governor Perry avoided too sharp a break with the representation tradition in South Carolina while simultaneously moving toward greater representation equity based on population in the Constitution of 1865. The 1865 effort resisted major change and white supremacy continued. The new constitution was ratified September 27, 1865.

The representation compromise by the 1865 constitutional convention created closer parity between the Upcountry and Lowcountry.  First, the parishes were abolished as election districts.  Then, local areas were more uniformly defined as districts.  Each district was given one senator, except Charleston which was given two by the convention, perhaps because Charleston represented the concentration of ten old parishes.  The House of Representatives was apportioned on the basis of white population and wealth measured by taxes paid.  To promote balanced representation according to wealth, all property was assessed at its real, current value rather than arbitrarily arranged, fixed values.  The new constitutional arrangements were not voted on popularly, but were implemented by the convention directly.  A governor with veto power, a four-year term, and popular election was arranged, but the convention did not require popular election of presidential electors.[26]

In 1866, Radical Republicans gained control in the United States Congress and passed the 1867 Military Reconstruction Act that required new constitutional conventions in states not ratifying the 14th Amendment.  Three things were required of those conventions before any state could be readmitted to the Union:

1.  The state must ratify the 14th Amendment.   

2.  States must repudiate their war debt.

3.  The franchise had to be extended to new freedmen.

The legislature under the new 1865 constitution faced federal scrutiny in dealing with these problems requirements.  For example, the state had a large debt, and both the legislature and the military governor attempted to manage it.  Imprisonment for debt was abolished, and a homestead exemption for debt relief was defined, first by the federally appointed military governor, Major-General Dan Sickles, but then in a statute by the legislature as well.

The second constitution in 1865 moved toward increased democracy in limited ways.  It provided for the election of the governor and presidential electors by direct popular vote, rather than by indirect election by the legislature.  It abolished property qualifications for office holding.  It also abolished slavery, but it did not define the civil rights of the former slaves satisfactorily.  Even worse, the legislature proceeded to pass “Black Codes” to restrict the civil rights of newly emancipated African-Americans and it refused to ratify the 14th Amendment. General Sickles declared the Black Codes void in South Carolina. Aggravated by South Carolina’s insistence on electing former Confederate heroes to the Congress, its passage of the Black Codes to regulate former slaves, and it refusal to ratify the 14th Amendment, the U.S. Congress directed formation of a new state government in 1868. 

1868 SC Constitution[27] 

 

            Blacks were given the right to vote for delegates to the new convention.  In South Carolina and Mississippi, in fact, the majority of voters were now black. Seventy of the 124 delegates to the new South Carolina convention were black as a result of this new strength and white boycotts of the election of delegates.

 

            As a result, the new SC Constitution of 1868 broke new ground, especially in terms of meeting the needs of the small farmer and propertyless laborer of either race.  Examples:

1.  It included an extensive Bill of Rights. The 1790 Constitution had none, and the 1865 Constitution only a brief one.

2.  It delineated new areas of government responsibility to citizens—e.g., to create and maintain a free public school system.

3.  It accelerated democratization in South Carolina by retaining the abolition of property requirements for office holding and reducing the types of crimes for which disenfranchisement could occur.

            4.  The lower house of the legislature was to be apportioned solely on population.

            5.  It eliminated the poll tax as a companion to the property tax.

6.  Popular election was to be used to select state office holders and presidential electors.

            7.  The legislature would continue to elect state judges, but life tenure was ended.

8.      For the first time, the Constitution was submitted to the people for approval.

 

But, the vote on the new Constitution was along racial lines--an ominous sign.  In 1868 the Ku Klux Klan emerged in South Carolina.  The negative white reaction to federally mandated changes, especially recognition of rights for former slaves, increased. The United States Congress passed the Civil Rights Acts of 1870, 1871, and 1875, in part to provide federal statutory relief for individuals punished by these codes in South Carolina and across the south.  Amendments to the United States Constitution (13th, 14th, and 15th, but especially the 14th) abolished slavery, gave African Americans the right to vote, and placed state actions that denied equal protection or due process of law under the purview of the federal Constitution. 

Subsequent social developments largely reflected conflicts between attempts by outsiders to create more democratic institutions and attempts by insiders to return to a stable order. It was a stability intended to exclude or restrict African Americans and uncooperative whites from meaningful participation in politics. Adoption of the 15th Amendment in 1870 outlawed racial qualifications for voting as federal law. Whites disagreed with such policies and argued against “taxation without representation” in a governmental system in which Blacks and other propertyless people made public policy. Whites wanted to end Republican rule in South Carolina as a forced “reconstruction” of a traditional way of life they did not want to change.

1876, the “Edgefield Plan” and the Bourbons 

 

            Under the leadership of former Civil War General Wade Hampton, South Carolina Democrats regained control over the state’s government in 1876. But, control came at a price. Many South Carolinians also endorsed the Edgefield Plan. Copied from Mississippi, it advocated the use of fraud, economic intimidation and violence to regain control of state government from Republicans and Black voters. They found strength in a national mood that was shifting away from support for Reconstruction to a growing desire for an end to the Civil War and the resulting animosities.

 

            “Bourbon” is a term used to describe the leaders, General Hampton among them, who idealized antebellum society and wanted to restore white domination, but who were uncomfortable with the fraud and violence of the Edgefield Plan. Hampton, reflecting perhaps a pre-Civil War sense of nobility, promised African-Americans they would not lose their political rights. But, many whites violently hated the black participation in government and politics.  Hampton was unsuccessful in rooting out racism and Democrats moved to exclude blacks from the party. In 1878, Hampton was reelected Governor but shortly thereafter took a vacant United States Senate seat and left South Carolina, thus demonstrating his inability and/or unwillingness to fight extremists in the Democratic Party.

 

            The 1890s saw a number of laws designed to hedge black political participation. A key effort was the “Eight Box Law” which set up eight boxes for various classes of political office on election day.  Ballots had to be correctly entered to count, which required the ability to read to connect the proper box for the ballot.  The result, of course, was the disfranchisement of blacks and poor whites.  But, given the concerns about disfranchisement of whites, the legislature did allow election supervisors to read labels on boxes if requested. Discretion thus existed at the polling place and supervisors lied to blacks thereby invalidating their votes.

 

The Rise of Tillman

 

            During the 1880s agrarian reform became in issue in South Carolina.  Cotton production increased but prices declined.  The lein system used by merchants to extend credit to small farmers contributed to the economic distress since cotton was typically required to be planted since it could not be eaten by the farmer.  In this environment arose Ben Tillman, a farmer turned politician.  Tillman disliked the Bourbons and the agricultural policies of the landed gentry.  He wanted a new state Constitution and the exclusion of Blacks from political participation.  He hated the Lowcountry, Columbia as the seat of government dominated by the gentry, and the South Carolina College, later the University of South Carolina, which he viewed as taken over by the gentry.

 

            White supremacists and the Upcountry supported Tillman’s call for a constitutional convention.  In 1894 one was called, but by a narrow margin. The result was the 1895 Constitution.

 

1895 Constitution 

 

            A dilemma faced by the constitutional convention was how to eliminate the black vote without also affecting poor white voters.  Some tried to argue the need to eliminate fraud and corruption from elections and government, but the fundamental problems persisted.

 

            The resulting 1895 Constitution disfranchised blacks and established white supremacy in several ways—registration and residency restrictions were used, for example.  To register one had to be a state resident for 2 years, a county resident for 1 year, and a precinct resident for 4 months—and to have paid a poll tax 6 months in advance. Moreover, county vote supervisors retained discretion to register or refuse to register a voter.  Until January 1, 1898 potential voters were required to read a section of the state Constitution or understand it when read to him by the registrar.  After 1898 the prospective voter had to read and write any section of the Constitution to the registrar’s satisfaction and show he owned or paid taxes on property worth $300 or more. A number of other reasons for disfranchisement existed, such as being charged with adultery.

 

            Otherwise, the 1895 Constitution continued past constitutional principles. It retained an extensive Bill of Rights, portions of the 1868 Constitution benefiting the poor, such as outlawing imprisonment for debt, kept direct election of most state officials, and indirect election of judges, maintained a public school system, as well as the requirement for uniform and equal taxation.  House membership as in the 1868 document was apportioned on population. The Senate saw only slight changes in 1895—but Charleston did lose one of its two senators.  Put in the context of the elimination of the parrish system (1895 Constitution), property as a basis for apportionment (1868 Constitution)—the 1895 Constitution’s paring down of Charleston’s senate seats can be viewed as part of a continuing march toward democratization if one omits the ongoing discriminatory treatment of blacks.

 

            South Carolina remained a strong legislative state, however.  Little change was made to the legislative and executive departments in 1895 [still similar to the 1790 Constitution].  A powerful executive was still feared, and indeed the appointment authority of the Governor was reduced in 1895 over the Reconstruction Constitution of 1868.  Thus, the Governor became more ceremonial in many respects. The office did retain the veto power, however, granted in 1868 with a 2/3’s legislative majority required to override (’65 Constitution had required only a majority). The Governor was allowed to veto sections of a law, however.  His term remained 2-years, with reelection possible.

 

 The 1895 Constitution established the legal framework for much of the 20th century. The 1895 Constitution was not submitted to a popular referendum.  The theory was that because the people chose the Convention delegates, the Convention could put its provisions directly into operation.

Contemporary Revision of the 1895 Constitution

 

As early as the 1920s, Professor D. D. Wallace questioned whether the 1895 Constitution needed replacement.[28]  By the middle of the twentieth-century, the inappropriateness of the 1895 Constitution was evident on several fronts. 

For one thing, it was cluttered by numerous amendments required for local government actions.  Through the 1966 election, 330 constitutional amendments had been passed.[29]  About three-fifths of these amendments dealt with bonded debt limits for local governments, especially school districts.  It was not until 1968 that a constitutional amendment to change the bonded debt of a county in South Carolina could be voted on just within the county and not statewide.  South Carolina along with Florida had the ninth longest constitution in the country in 1960 when measured by the number of words in the document.[30]  The constitution was crowded with matters that could just have easily been accomplished through statutes.

Many citizens and organized groups had recommended constitutional revision, but before the 1960s, there were no practical results.  A study committee was created by the General Assembly in 1966 to evaluate the need for revision.  Based on its evaluations, the committee was additionally charged “to recommend provisions which may be included in a new constitution, to suggest methods to eliminate archaic provisions, and to propose methods to bring about changes ... .”[31]

The Committee to Make a Study of the South Carolina Constitution of 1895 made its report to the General Assembly in July 1969.  In the course of its work, the study committee focused on each section of the 1895 document, painstakingly reviewed it, and made a specific evaluation whether the section should be carried over or deleted.  If carried over, needed revisions were recommended.  Based on its general evaluation, the study committee also demonstrated the need for some new sections in the constitution and recommended them.[32]

The result was a proposal to the General Assembly of seventeen new articles that could be substituted on an article-by-article amendment process for the original seventeen articles in the 1895 Constitution.  The General Assembly also approved the study committee’s proposal for the appointment of a legislative steering committee of five senators and five representatives.  The steering committee was headed by Senator Marion Gressette (D-Calhoun County) and its purpose was to shepherd the individual articles through the legislature and on to the voter referendums.

Originally, it was thought that the article-by-article revision could be accomplished by submitting the proposed changes in all seventeen articles at the same time in the 1970 general election.  However, the steering committee needed more time before proposing the changed articles.  A critic might suspect that the legislature was dragging its heels to prevent deterioration in legislative preeminence.

Each proposed article had to be authorized by a two-thirds vote of each house and be approved or disapproved by a majority of the voters in the next general election.  If approved by the voters, the changed article had to be ratified by the General Assembly before it was included in the constitution.  All the approved amendments were ratified, but the ratification process was important because it set the effective date for the new amendment to take the force of the constitution. 

Despite all the extensions, debates, article-by-article revision, and then questions about amending the revised articles, the legislature and the people marched steadily ahead with the revision process.  The 1970 and 1972 elections produced several completely revised articles. 

Five newly revised articles were ratified in 1971.  Revised Article I deals with personal rights.  The longtime, formal constitutional guarantees for freedom and liberty were left intact.  Many provisions similar to the 1868 Constitution, such as to vest the power in the people, to establish religious freedoms, freedom of speech, and the right of assembly and petition, were not changed.  Among other fundamental freedoms and liberties carried over were guarantees of privileges and immunities, due process and equal protection of the law, and prohibitions against bills of attainder, ex post facto laws, and titles of nobility.  The complete list reads much like the Bill of Rights to the United States Constitution.

Revised Article II treats the right of voting.  The revised article essentially establishes up-to-date requirements for voting.  In a 1974 amendment, the voting age was set at 18 years and the residency requirement at 30 days.  The article also provides for the registration of voters.

The new Article IX arranges for corporations.  The revisions updated this article and streamlined the constitutional procedures by which corporations are regulated.  Common carriers, publicly owned utilities, and privately owned utilities are specifically mentioned.

Article XII distributes the functions of government.  The  revisions updated the older version of this article that was called “Charitable and Penal Institutions.”  The new article requires the General Assembly to provide appropriate agencies for “the health, welfare, and safety of the lives and property of the people of this State and the conservation of its natural resources.”  It provides for the building of prisons, the care and control of convicts, and the separate confinement of juvenile offenders.  

            New Article XV is the impeachment article.  Very few changes were made in this article that provides conditions for the removal of judges, the governor, and other officers that the General Assembly identifies by law.

In the 1972 election, voters approved seven more revised articles.  One of these articles dealt with alcoholic liquors and was proposed directly by the General Assembly rather than by the study committee.  After all these articles were ratified, the comprehensive result was one article essentially carried over into the new constitution (Art. XV, Impeachment), ten articles were revised, and the one new article added (Art. VIII-A, Alcoholic Liquors and Beverages). 

Article IV deals with the executive department.  Executive powers are not increased, but the rules of gubernatorial succession are made clear and definitions are made regarding who governs in the absence of the governor.  The most significant change came in 1981 when this revised article was amended again to allow the incumbent governor to run for reelection to a second four-year term.

Article V treats the judicial department.  The revised article provides for a unified court system under the supervision of the state Supreme Court.  It included old Article VI from the 1895 Constitution that dealt with jurisprudence.  This article was overhauled again after a successful constitutional referendum in 1984 to add a Court of Appeals between the state Supreme Court and the sixteen Judicial Circuit courts.  A 1988 amendment established a statewide grand jury to give the state attorney general more flexibility in prosecuting cases, especially drug cases.  Experts feel that handling evidence to win indictments is easier through the statewide grand jury than a jury with authority limited to a single county.

Revised Article VI clarifies and increases the removal powers of the governor by allowing the governor to suspend any state or local official, except for legislators or judges, if they are indicted by a grand jury.  This article also includes the “long ballot,” whereby South Carolina elects a Secretary of State, an Attorney General, a Treasurer, a Superintendent of Education, a Comptroller General, a Commissioner of Agriculture, and an Adjutant General to terms coterminous with the governor.

Article VIII on local government is a significant revision that allows local governing bodies for counties to replace the General Assembly’s tradition of special legislation.  The article also requires alternate forms of local government.  It combined two articles from the 1895 Constitution (VII-Counties and VIII-Municipalities). 

The article on alcoholic liquors and beverages (Article VIII-A) established the mini-bottle policy in South Carolina.  The state had been plagued historically with different approaches to regulation of liquor ranging from prohibition to a cumbersome “brown-bag” arrangement.  Consensus was difficult because of “wet v. dry” debates and preferences across the state.  By letting the voters decide, the legislature could reach a decision on the problem, define a productive source of tax revenue for public education as well as alcohol programs, and improve the image of the state for tourists and business people.

Article XI, Public Education, requires a free public school system and permits indirect state-aid to students.  The article creates a State Board of Education made up of one member from each of the sixteen judicial circuits elected by the legislative delegation within each circuit and rotated among the counties within.  The governor appoints an additional member to the board.

Since the earliest flurry of legislative changes in the constitution, developments have gone more slowly.  There have been some some changes in Article III regarding the legislative branch.  The article has not been revised, but an amendment in 1977 fixed the times and terms of the legislative session.  In 1979, a general reserve fund requirement was ratified under this article.

Revised Article X on finance and taxation was ratified May 4, 1977.  It is an extensive overhaul that identifies categories and formulas for the assessment of property and defines approaches that the General Assembly may take for classifying property and setting the assessment ratios for different categories of property.  The original 1895 Article X was the constitution’s most amended section.  The new article restricts the right of the state, its political subdivisions, and school districts to issue bonds and gives the General Assembly power to define limits and additional procedures for incurring general obligation debt.  These restrictions guard against assaults on the constitution in the form of specific amendments as a means to incur debt that might actually be excessive or careless.   

Provision for the militia (Article XIII) and eminent domain (Article XIV) have not been changed.  The article on the militia has a section that requires pensions for Confederate veterans and their indigent widows.  The last Confederate widow, Mrs. Daisy Cave, who married an elderly Confederate veteran while a young woman, survived until the early 1990s and her state pension check was regularly delivered in person by the elected Comptroller General.  The other articles deal with the amending and revising processes (Article XVI) and with Miscellaneous Matters (Article XVII).  These articles were changed to the extent necessary to accommodate the revision process.

Other Significant 20th Century Influences

 

            The 20th century saw significant changes to South Carolina’s constitutional system. Perhaps the most significant came, not from internal revisions, but as a result of outside forces, in particular the United States Constitution and federal laws.  Notable among these changes:

More recent changes affecting the state’s constitutional and political system: 

            In spite of some tendency to strengthen the governor’s power, the legislature in South Carolina continues to exert great power and authority—control over local government finances and state finances, general oversight of local government and regional concepts.

            Challenges:  (1) Should the cabinet system be extended to other agencies? (2) How much executive power should the governor have over the budget? Think about the 2001, Condon v. Hodges case over veto and balance requirements, as well as lack of statutory specificity over presentation of balance detail.  Plus, how far does the item veto power go when a governor vetoes words that may change the meaning of a statute? See the Drummond case.  And, (3) a most troubling issue—education finance and equity.

 

Item veto article

SC Constitution (pdf)

Endnotes



    [1].  James Bryce, The American Commonwealth, New York: The Commonwealth Publishing Company, 1908, p.

              [2].  Under the authority of England's King Henry VII, John and Sebastian Cabot were among the first European visitors to the region of the present-day American Southeast in 1497.  The Spanish and French also initiated ventures in the region.  The English first called the entire region Virginia, but later applied the name, Carolina, to the lower part.  For a long time, the English did lttle to colonize the Carolina territory.  Then, in 1629, Charles I of England granted all the territory south of Virginia as far west as the Mississippi River to his attorney general, Sir Robert Heath.  When the Heath charter failed, King Charles II restarted the colonial project by granting the land this time to some of his political supporters.

            [3].  Fletcher M. Green, Constitutional Development in the South Atlantic States, 1776-1860:  A Study in the Evolution of Democracy Chapel Hill:  University of North Carolina Press, 1930, pp. 14-17.

            [4].  Green, Constitutional Development, p. 18.

            [5].  The grant was made in a charter dated March 24, 1663, to eight “Lords Proprietors.”

            [6].  Wesley F. Craven, A History of the South, Vol. 1:  The Southern Colonies in the Seventeenth Century, 1607-1689 (Baton Rouge, Louisiana:  Louisiana State University Press, 1949), p. 341.

            [7].  Description from John Langdon Weber, History of South Carolina (Boston, Ginn and Company, 1891), pp. 17-19.  The several histories from the 1890s are dated by contemporary standards, but they catalog many events and developments in more detail than present histories permit.

            [8].  Basic description in John A. Chapman, School History of South Carolina (Richmond, Va.:  Everett Waddey Co., 1895), pp. 35-37.

             [9].  Green, Constitutional Development, p. 21 ff.

           [10].  Lewis P. Jones, South Carolina:  One of the Fifty States (Orangeburg, South Carolina:  The Sandlapper Press, 1985), p. 311.

            [11].  Ibid.

           [12].  Hardy Wickwar, 300 Years of Development Administration in South Carolina (Columbia, South Carolina:  University of South Carolina Bureau of Governmental Research and Service, 1970), pp. 63-67.

          [13].  Henry Alexander White, The Making of South Carolina (New York:  Silver, Burdett and Company, 1906), pp. 156-157.

            [14].  Lewis P. Jones, South Carolina:  One of the Fifty States, p. 332.

           [15].  David Ramsay, History of South Carolina (1809) in E. D. Johnson and K. L. Sloan, South Carolina:  A Documentary Profile of the Palmetto State (Columbia, South Carolina:  University of South Carolina Press, 1971), p. 430.

            [16].  Daniel J. Elazar, American Federalism:  A View From the States, 3rd ed. (New York:  Harper and Row, Publishers, 1984), p. 46.

            [17].  David D. Wallace, South Carolina:  A Short History, p. 341.

            [18].  Primogeniture means that the oldest child, usually a son, has the right to inherit the complete estate of one or both parents.  This practice sanctions a traditionalistic elite.

            [19].  David D. Wallace, South Carolina:  A Short History, p. 344.

            [20].  Ibid., p. 345.

            [21].  George C. Rogers, Jr., Charleston in the Age of the Pinckneys (Norman, Oklahoma:  University of Oklahoma Press, 1969).

            [22].  David D. Wallace, South Carolina:  A Short History, pp. 534-534.

           [23].  Charles E. Cauthen, South Carolina Goes to War, 1860-1865 (Chapel Hill, North Carolina:  University of North Carolina Press, 1950), pp. 201-216.

            [24].  David D. Wallace, South Carolina:  A Short History, p. 563.

            [25].  Willie Lee Rose, Rehearsal for Reconstruction (New York:  Oxford University Press, 1964).

            [26].  David D. Wallace, South Carolina:  A Short History, pp. 563-564.

    [27].  In this and the following discussion, see especially Susan Bowler and Frank T. Petrusak, “The Constitution of South Carolina:  Historical and Political Perspectives,” in Luther F. Carter and David S. Mann (eds.), Government in the Palmetto State (Columbia, South Carolina:  University of South Carolina Bureau of Governmental Research and Service), p. 29.

           [28].  David D. Wallace, The South Carolina Constitution of 1895, Bulletin No. 197 (Columbia, South Carolina:  University of South Carolina Press, 1927), pp. 119-125.

           [29].  Robert H. Stoudemire, “Constitutional Revision and The Task Ahead,” The University of South Carolina Governmental Review, (Vol. 17, No. 1), 1975:  pp. 1-4.

            [30].  Council of State Governments, Book of the States, 1960-1961 (Chicago:  1961).

           [31].  Robert H. Stoudemire, “The S. C. Constitutional Revision Report.” in The University of South Carolina Governmental Review (Vol. 12, No. 2), 1975: pp. 1-4.

            [32].  Ibid.