John Hood's Syndicated Weekly Column
RALEIGH – Even for folks like me who worry about America becoming too litigious a society, it is certainly comforting to know that when someone, some professional, or some company does something demonstrably wrong to me, I have recourse to governmental courts to obtain justice and a remedy.
But what if the institution doing the harm is itself the government? And what if the harm isn’t done just to me personally, but to the citizens as a whole and to the constitution that protects our rights? What recourse do I have?
It’s easy to say that I have the same option, to sue the government in court, but it’s harder to pull this off in practice than it is to insist on its existence in theory. Most citizens lack the financial wherewithal to pursue such a costly litigation, and that assumes that citizens are actually aware of harms being perpetrated by their elected or appointed representatives against the constitutional order in the first place. Here in North Carolina, the list of such encroachments is growing. It already includes:
• Efforts to issue public debt, effectively if not legally backed up by the state’s taxing authority over the public, without a vote of the public. Examples include the construction of some state prisons and the use of local debt to build a new arena for the Charlotte Bobcats.
• Attempts by leaders of the North Carolina General Assembly, upset with the way their gerrymandering handiwork has been greeted by the state’s judiciary, to violate the constitutional separation of powers by creating a new redistricting court and shifting all new and pending redistricting cases to its jurisdiction. This is a truly egregious case that, if allowed to stand, would set a horrible precedent.
• Constant efforts to evade the state’s balanced-budget requirement by borrowing funds, shifting accounts around, and otherwise being too clever by at least half. Examples are too numerous to count.
• Abuse of the taxing authority granted by the constitution to state and local governments by using it for projects clearly outside the original intent of a “public purpose,” such as subsidizing sports teams, conventioneers, or other private interests.
• Violation of the principle of equal treatment under the law by targeted incentives programs that purport to advance economic development by taxing some companies at a higher rate than others. There may also be a federal claim to be made here about the constitution’s “interstate commerce clause,” since states that play these games are in effect setting up the equivalent of interstate trade barriers via differential tax laws.
• Encroachments of executive-branch authority by legislative leaders who think they can and should supervise state agencies and private agencies funded by the state.
In these and other cases, aggrieved North Carolinians may now have a recourse that was previously unavailable to them. A new public-interest legal foundation, the North Carolina Institute for Constitutional Law, has just begun operations in Raleigh under the chairmanship of Bill Graham, formerly a Superior Court Judge and the state’s Commissioner of Banks.
Graham’s board of directors includes such luminaries as Robinson Everett of Durham, a professor at Duke University School of Law and former Chief Judge for the US Court of Appeals for the Armed Forces; Ron Link of Chapel Hill, the Dan K. Moore Professor of Law and former Acting Dean at the University of North Carolina Law School; Bill Maready of Winston-Salem, the lead attorney and plaintiff of the celebrated incentives case Maready v. City of Winston-Salem; and Art Pope, of Raleigh, President of the Variety Wholesalers retail chain and a former four-term state representative from Wake County.
Legal advisors to the new group include constitutional lawyer and taxpayer watchdog Gene Boyce (who has secured hundreds of millions of dollars in refunds of taxes illegally imposed by the state), Charlotte attorney Tom Ashcraft (who recently represented parents in a successful lawsuit in Charlotte-Mecklenburg to overturn forced busing), legal activist and state Rep. Skip Stam (whose legal work has involved both economic development and local taxation issues), and several others.
In addition to conducting research and education campaigns on the state and federal constitutions, surely a task worth doing in and of itself, ICL will also “engage in litigation on behalf of citizens and the public interest to protect constitutionally-guaranteed rights,” Graham said.
In other words, if you see an instance of politicians violating the constitution, misusing the powers of their office, or intruding on your personal liberties as a North Carolina citizen, don’t take the law into your own hands – let ICL help you take it to court.
Hood is president of the John Locke Foundation, publisher of Carolina Journal.com, and host of the statewide program “Carolina Journal Radio.”