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The South, Slaves and Subversives

Old times there are not forgotten,
Look away, look away, look away, Dixieland.
 -A song, Dixie

It's easy to make fun of the South. It was, of course, made easier by Virginia Governor, Robert F. McDonnell who declared April Confederate History month and in so doing omitted any reference to slavery. Explaining the omission Mr. McDonnell said: "there were any number of aspects to that conflict between the states. Obviously, it involved slavery. It involved other issues. But I focused on the ones I thought were most significant for Virginia." He also said he hoped to promote tourism by issuing the proclamation and referring to slavery, he probably thought, was not apt to attract a cotton candy eating crowd. Nonetheless, the governor recognized the error of the proclamation and corrected it.

On April 8 he said failing to refer to slavery in the proclamation constituted a major omission. He issued an amendment to the proclamation that said slavery "was an evil and inhumane practice that deprived people of their God-given inalienable rights and all Virginians are thankful for its permanent eradication from our borders." It seems a bit awkward to be expressing thanks for slavery's eradication as if it had just occurred a few months ago, but when curing an insensitive proclamation it's better to go too far than not far enough. Those who took the occasion of the poorly proclaimed proclamation to describe the south as insensitive have probably failed to notice the steps taken by another southern state to acknowledge the follies of an earlier era. That state is South Carolina.

South Carolina has lately been in the news primarily because of the dalliances of its governor, Mark Sanford. In a welcome distraction, legislation has been introduced in the state legislature that would repeal a statute that was enacted in 1951. It appears in Title 23 of the South Carolina Code of Laws and has the catchy title of ""Subversive Activities Registration Act.":" It applies to Subversive Organizations and to Organizations Subject to Foreign Control as broadly defined in the act. In order to keep track of these organizations the statute requires that "Every organization or person coming within the provisions of this chapter shall file with the Secretary of State all information which he may request, on the forms and at the times he may prescribe."

The Secretary of State of South Carolina prepared a form that the described organizations are required to fill out. The form asks for the name of the organization, the name and address of its chief agent and then asks pleasantly: "Do you or your organization directly or indirectly advocate, advise, teach or practice the duty or necessity of controlling, seizing or overthrowing the government of the United States, the state of South Carolina or any political division thereof? " If the agent checks "yes" the agent is requested to outline the organization's "fundamental beliefs" and to attach its bylaws or minutes of meetings from the preceding year. The form must be accompanied by a $5.00 filing fee.

In late February South Carolina State Sen. Larry Martin said that the legislature should take steps to get rid of the statute. Although not articulated by him, there are at least three reasons it might be good to rid itself of the statute and the legislature will probably come up with others.

The first is that terrorists are unlikely to be aware of the act's requirements since no one else seems to be and thus are unlikely to have registered, thus making them scofflaws as well as terrorists. (It wouldn't hurt for the FBI or Secret Service to stop by the S.C. Secretary of State's office and check to see if any terrorists have registered. It would be amusing and embarrassing if it turned out that Osama bin Laden had registered and lives not in a remote region of Afghanistan but in South Carolina, perhaps along the Appalachian Trail.)

Another reason for repealing the statute is that since its existence came to light within the past weeks it has competed with the governor for attracting ridicule among talk show hosts and others.

The last reason for repealing the statute and one that probably appeals to the S.C. legislature is that the statutory description of the kinds of organizations that must register under the Act could describe the Tea Party movement. The rhetoric one hears from its members and the crazies who show up at rallies, some carrying weapons of minor destruction, and all railing against the U.S. Government, may easily cause them to fall within the purview of the statute. South Carolina would be embarrassed were it required to prosecute them under the provisions of the Act. Tea party members would take great offense at the idea that they are considered no better than, and treated the same as, communists were in 1951. Everyone will have cause to celebrate the law's repeal.

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Christopher Brauchli

Christopher Brauchli

Christopher Brauchli is a columnist and lawyer known nationally for his work. He is a graduate of Harvard University and the University of Colorado School of Law where he served on the Board of Editors of the Rocky Mountain Law Review. He can be emailed at For political commentary see his web page at

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