Constitutions

South Carolina’s royal charter of 1663 allowed eight Lords Proprietors to develop a code of laws for the colony with the advice and consent of selected settlers. The result was the 1669 Fundamental Constitutions. Although revised several times until abandoned in 1698, the Fundamental Constitutions framed the colony as a social hierarchy, encouraging new settlement based on landownership and a provision for religious freedom. It also inspired the colonial Commons House of Assembly, which became the significant governing body of the colony.

South Carolina adopted its first state constitution in 1776. Since then, it has adopted six more: in 1778, 1790, 1861, 1865, 1868, and 1895. The constitutions of 1790, 1868, and 1895 are especially noteworthy since they were adopted at critical turning points in the state’s history: in 1790 after the state entered the federal union; in 1868 during Reconstruction; and in 1895 after general economic distress. The revision and modernization of the 1895 constitution, especially since 1966 in response to federal civil rights policies and state and local reform pressures, caused some to say that there is actually an “eighth” South Carolina constitution.

South Carolina became a free and independent state on March 26, 1776, more than three months before the Declaration of Independence. The state’s Provincial Congress adopted a plan of government that was to last until the disputes with Great Britain could be settled. The Provincial Congress dissolved into a General Assembly with a popularly elected lower house, which then elected thirteen of its members to an upper house. It also elected a chief executive, or “president,” a vice president, and a chief justice. Political power stayed firmly in legislative hands and with lowcountry legislators. The upcountry area had a large, white population but was permitted to elect only 64 of the 202 members of the General Assembly.

Under the 1778 constitution, “president” was replaced by “governor,” who was still elected by the General Assembly. The Anglican Church was disestablished, and the upper house became the popularly elected S.C. Senate. The representation imbalance in the legislature was adjusted so that the upcountry share approached forty percent. In 1786 the General Assembly relocated the capital from Charleston to Columbia, symbolizing increased statewide unity. The following year the General Assembly banned the importation of new slaves. On May 23, 1788, South Carolina ratified the United States Constitution.

With pressure from the upcountry for increased representation and the new atmosphere under the United States Constitution, a new state constitution emerged, this time from a convention of elected delegates. In the 1790 legislative session the General Assembly ratified the third state constitution, and it remained in force until 1861. The constitution of 1790 continued the legislative dominance of lowcountry planters by apportioning representation on the basis of wealth. The legislatively elected governor had no veto power. The key to “aristocratic stability” was political control by white male owners of land and slaves. A S.C. House member had to own five hundred acres of land and ten slaves in his district. One could also qualify as a House member by owning £150 sterling worth of debt-free real estate or, if not a resident of the parish, £500 sterling. Senators had to own twice as much. Voting was limited to white males, each of whom 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. The power of the 1790 legislature was virtually complete over all matters of government in South Carolina. The General Assembly made all of the laws and elected holders of all major offices, including the governor, presidential electors, U.S. senators, and many local officials.

An amendment to the constitution in 1808 gave upcountry white males control of the lower house by a sixteen-vote majority. Under terms of the Compromise of 1808, each election district would have one senator, except for Charleston with two. Each election district would also have one representative for 1/62 of the white population and 1/62 of the state’s taxable wealth. Despite the changes, the values of the planter elite continued to prevail since plantation agriculture continued to spread into the upcountry. This expansion added to the harmony of political and economic opinion in South Carolina that would eventually support secession.

The Secession Convention first met in Columbia in December 1860 and then moved to Charleston, where it adopted and signed the Ordinance of Secession on December 20. The convention also made some changes in the wording of the 1790 constitution to accommodate withdrawal from the federal Union, but it changed little else. Under the constitution of 1861, the General Assembly continued to elect the governor.

A new state constitution was required for readmission to the Union after the Civil War. President Andrew Johnson appointed a provisional governor, Benjamin F. Perry, to register eligible voters (adult males who had taken an oath of allegiance to the United States) to elect delegates to a state constitutional convention. Each parish and district elected as many delegates as it had members in the lower house. By not counting senators, Perry tried to advance population-based equity at the convention. The new constitution of 1865 was ratified on September 27, 1865, by the convention rather than by popular vote. It perpetuated the values of the pre–Civil War elite and adopted only limited democratic reforms.

The 1865 constitutional convention created closer parity between the upcountry and the lowcountry by replacing parishes with more uniformly defined election districts. Each district was given one senator, except Charleston with two. The S.C. House of Representatives was apportioned on the basis of white population and wealth measured by taxes paid on property based on current values rather than outdated ones.

The 1865 constitution made only limited moves toward democracy. Legislators continued to elect presidential electors, but the governor was now popularly elected to a four-year term and granted veto power. Property qualifications for office holding were abolished, but the civil rights of former slaves were not satisfactorily defined. Qualified blacks were still not eligible to vote. Aggravated by South Carolina’s insistence on electing former Confederate heroes to Congress and its passage of “Black Codes” to strictly regulate former slaves, Congress disallowed the 1865 constitution and ordered the creation of a new one.

Under authority of the congressional Reconstruction Acts, a state constitutional convention met in Charleston on January 14, 1868. Under federal military supervision, African American men voted in South Carolina for the first time in the election for delegates, and three-fifths of the total were black. Many whites refused to participate in the ratification election. The new constitution remains the only whole constitution to be submitted directly to the popular electorate for approval. The United States Congress ratified it on April 16, 1868.

The 1868 constitution was revolutionary because it embodied many democratic principles absent from previous constitutions. The new document provided for population alone, rather than wealth or the combination of wealth and population, as the basis for House representation. It also continued popular election of the governor. Additionally, the 1868 constitution abolished debtors’ prison, provided for public education, abolished property ownership as a qualification for office holding, granted some rights to women, and created counties.

The popularly elected governor was given a veto that required a two-thirds vote of the General Assembly to override. A two-thirds legislative vote was also required to issue any bonded debt. In 1873 an additional amendment required that two-thirds of the voters confirm an increase in the general obligation debt of the state.

The 1868 constitution’s Article X provided for a uniform system of free public schools. Although not implemented until decades later, the constitution mandated that the schools should operate for at least six months each year and that all children had to attend school at least twenty-four months (four academic years) as soon as enough facilities were available. Provisions for the deaf and blind were also ordered. Schools were financed by a poll tax, and an 1878 amendment added a property tax to increase support for public education. Maintenance of the state university was made mandatory, and the creation of a normal school and an agricultural college were also required.

The status of the newly freed slaves was also solidified in the 1868 constitution. Race was abolished as a limit on male suffrage. Disfranchisement could be only for murder, robbery, and dueling. The Black Codes that had flourished under the constitution of 1865 were overturned. There was no provision against interracial marriage, and all the public schools were open to all races.

Stirrings that led to the constitutional convention of 1895 began in the 1880s with agricultural and labor groups. The 1895 constitution was adopted by a convention and not submitted to a popular referendum. Under the new constitutional authority, the Black Codes would reemerge as Jim Crow laws in forms subtle enough to avoid immediate conflict with the Fifteenth Amendment to the U.S. Constitution.

Benjamin R. Tillman had been elected governor in 1890 by appealing to white farmers, a minority of the state’s total population. Poor whites and conservative aristocrats also feared the political manipulation of the large African American majority vote by planters, professional men, and business leaders. Under Tillman’s leadership, the state steered the narrow course of disfranchising South Carolina’s African Americans without disfranchising poor, illiterate whites or stirring the national government to act on the U.S. Constitution’s provisions protecting black civil rights. The key to disfranchising African Americans was the new suffrage clause in the 1895 constitution. The provision gave the right to vote to all males who were paying taxes on property assessed at $300 or more and who were able to read and write the state constitution. Even if a black male voter owned enough property, the constitutional literacy tests could be used by local, white voting registrars to disqualify him. Literacy tests could be used to exclude uncooperative poor whites also. The poll tax was not abolished until 1951, and unregulated local voter registration continued until passage of the federal Voting Rights Act in 1965.

The South Carolina tradition of legislative control of local government, as old as colonial times, was also continued. The 1895 constitution made no provision for locally elected county governing bodies. The legislative delegation from each county became the county governing board. A special, “local government” session was reserved for the end of each legislative year to pass a budget, or “supply bill,” for each county.

Despite the preoccupation with race, many of the reform-oriented features of the 1868 constitution were retained. Among them were the governor’s veto, limited legal rights for women, and the provisions for public education. However, the practical side of the 1895 revisions was that the executive department remained split into many offices, including popularly elected state agency heads. The formal powers of the governor were generally restrained, especially by limits to a two-year term with potential for only one reelection.

As early as the 1920s, the professor David D. Wallace questioned whether the 1895 constitution needed replacement. By the middle of the twentieth century, criticism of the 1895 constitution has become more extensive. For example, by 1966 the constitution contained 330 amendments, most of which 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 could be voted on just within the county and not statewide. South Carolina had the ninth-longest constitution in the country in 1960. The constitution was cluttered with decisions just as easily made and changed by statute.

Many citizens and organized groups had recommended constitutional revision, but this was without practical results before the 1960s. A study committee (called the West Committee) was created by the General Assembly in 1966 to evaluate the need for revision. Based on its findings, 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.”

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 committee focused on each section of the 1895 document, painstakingly reviewed each one, and made a specific evaluation to carry over or delete a section. For a section that was to be carried over, the report recommended any needed revisions. The committee also drafted and made the case for some new sections in the constitution. It proposed seventeen new articles to the General Assembly to be considered through an article-by-article amendment process aligned with the original seventeen articles in the 1895 constitution. The General Assembly also approved the study committee’s proposal for appointment of a legislative steering committee of five senators and five representatives to shepherd the individual articles through the legislature to general election referendums.

The plan was to complete the article-by-article revision in committee and submit all seventeen articles at the same time in the 1970 general election. Each proposed article had first to be authorized by a two-thirds vote of the S.C. House and Senate and then approved by a majority of general election voters. The revised article then had to be ratified again by the General Assembly before it was finally included in the constitution. The date of ratification was the effective date for the new amendment.

The hope for complete revision in one general election was not achieved. Five revised articles were approved by voters in 1970 and ratified in 1971. Since then, developments have gone more slowly. Article III regarding the legislative branch 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.

The original 1895 Article X was the constitution’s most amended section. The new article restricted the right of the state, its political subdivisions, and school districts to issue bonds and gave the General Assembly power to define limits and additional procedures for incurring general obligation debt. These restrictions limited the use of specific constitutional amendments as means to incur excessive or careless debt. Revised Article X on finance and taxation was ratified on May 4, 1977. It identified categories and formulas for the assessment of property.

Among other revisions, new Article V provided for a unified court system under the supervision of the state Supreme Court. 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 felt that handling evidence to win indictments would be easier through the statewide grand jury than through a jury with authority limited to a single county.

Revised Article VI clarified and increased the removal powers of the governor by allowing him to suspend any state or local official, except legislators or judges, who was indicted by a grand jury. This article also included 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 that of the governor.

Article VIII on local government allowed local governing bodies for counties to replace the General Assembly’s tradition of special legislation. The article also required 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 minibottle policy in South Carolina. Historically the state had been plagued with different approaches to regulation of liquor ranging from prohibition to a cumbersome “brown-bag” arrangement. Consensus was difficult because of “wet vs. 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 businesspeople.

Article XI, Public Education, required a free public school system and permitted indirect state aid to students. The article created 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 would appoint an additional member to the board.

The need for changes has continued as parts of the constitution have become out-of-date or been challenged, especially as South Carolina’s rural traditions have given way to urbanization, industrialization, and tourism. These changes have inevitably led to more fluid social and political attitudes than those existing in the past. The revised and amended state constitution as it stood in the early twenty-first century established the foundations for more independent and effective executive and judicial branches and created a basis for more self-directed local governments. Hence, South Carolina joined other states that have increasingly relied on their state constitutions, rather than immediate legislative action, for directing important public policy decisions.

Green, Fletcher M. Constitutional Development in the South Atlantic States, 1776–1860: A Study in the Evolution of Democracy. 1930. Reprint, New York: Da Capo, 1971.

Tarr, G. Alan. Understanding State Constitutions. Princeton, N.J.: Princeton University Press, 1998.

Underwood, James L. The Constitution of South Carolina. 4 vols. Columbia: University of South Carolina Press, 1986–1994.

Wallace, David D. The South Carolina Constitution of 1895. Columbia: University of South Carolina Bureau of Publications, 1927.