State Con Law Case of the Week: Can One Legislature Bind the Next?

Anthony Sanders · September 24, 2021

The idea that the legislature cannot bind itself into the future is an age-old notion, and one that’s mostly correct. For the eighteenth century scholar William Blackstone it was absolute when it came to the British Parliament. As he neatly put it, “Acts of parliament derogatory from the power of subsequent parliaments bind not.” (Blackstone Commentaries, vol. 1, *90.) In the same passage, Blackstone also quoted Cicero who, in showing his contempt for “restraining clauses” said “When you repeal the law itself, you at the same time repeal the prohibitory clause, which guards against such repeal.”

But Blackstone was writing about the British Constitution, where Parliament (including this funny thing called the “King (or Queen) in Parliament”) is the sovereign and supreme lawmaker. In the United States, however, “the people” are the sovereign. And the people bind lawmakers all the time in the form of constitutions. The U.S. Constitution binds what Congress, the President, the courts, and also often the States, can do. Only “the people,” through a constitutional amendment, can change that. The same is true for state constitutions. Although state constitutions are often easier to amend than the U.S. Constitution, doing so is different than simply adopting a statute. Thus, in the U.S. the legislature can bind itself in the future but only in concert with the people through a constitutional amendment, whether that be three-quarters of states ratifying the amendment (as with the U.S. Constitution), or a popular referendum (as in some states), or otherwise. (There’s an argument that “super statutes” like the Religious Freedom Restoration Act—which says it applies to future laws unless they “explicitly exclude” it—do this, and that perhaps there’s a constitutional problem with them for that reason, but we’ll leave that aside for present purposes. There’s also sometimes special rules for non-constitutional initiatives and referendums in some states.)

In South Carolina this week the question arose of whether its legislature could bind itself in the future short of a constitutional amendment. And, unsurprisingly and in line with what Blackstone would have said, the answer was “no.” In Pinckney v. Peeler the court addressed the highly controversial decision of the state General Assembly in 2000 to remove the Confederate flag from the state capitol and also create a protection against removing certain other historical markers. The law was passed as a compromise after a lengthy and heated years-long debate. In return for removing the flag it prevented the State and all local governments from renaming streets, bridges, parks, and other public areas, and removing or even altering monuments or memorials to various wars and peoples (including the Civil War and African Americans, but not all armed conflicts or all peoples). Essentially the law removed the flag but tried to ban any future removals by the State or local governments.

Of course, as it was just a statute the legislature itself could alter it in the future. However, it tried to make this harder by including a clause mandating that it can only be amended or repealed by a two-thirds vote by each house. The policy behind this was that only with an overwhelming consensus would the legislature allow any renaming, removal, etc.

A group of plaintiffs who want to make it easier to alter or remove monuments challenged the law, both the substantive restrictions on local governments and the two-thirds supermajority. In the end the court found the substantive restrictions were constitutional and not “special legislation” under the South Carolina Constitution (a ruling which I’m not examining here). But first it addressed the two-thirds requirement.

The court began with the fundamental rule discussed above, that “there can be no limit
on the General Assembly’s power to enact, amend, or repeal legislation unless the limit is set forth in the state or federal constitution.” This is because its power is “plenary.” I don’t know if that is exactly right, as the legislature only has the power the people have delegated to it in the first place, and they should not be understood to have delegated all power, just reasonable power. But it’s true that whatever that reasonable power is, if there is no additional constitutional limit on the power then the legislature has discretion to pass and repeal laws within it. The court also quoted a U.S. Supreme Court case from 1905, Manigault v. Springs, which, funnily enough, also concerned a South Carolina law. There the Court said the South Carolina legislature had the power to authorize the removal of a dam across a creek even though a prior law said this kind of authorization could only be done following a petition by those asking for the removal, which hadn’t been done. But “As [the law requiring a petition] is not a constitutional provision, but a general law enacted by the legislature, it may be repealed, amended, or disregarded by the legislature which enacted it.”

Thus, there wasn’t much of an issue for today’s South Carolina Supreme Court in assessing the two-thirds requirement. It declared that “[u]nless the constitution provides otherwise, the General Assembly shall legislate by majority vote” and therefore found the provision unconstitutional.

This should serve as a reminder for whatever law is at issue, whether it’s a “good” law or a “bad” one. Unless there’s a constitutional requirement that a statute cannot be repealed through ordinary legislation, ordinary legislation is generally just that. Some laws stay on the books for all kinds of reasons, including political inertia, special interest lobbying, etc., but the reason they stay isn’t because they say “you can’t repeal this.”

Anthony Sanders is the director of IJ’s Center for Judicial Engagement.