Justice Berger explores future of ‘fruits of their own labor’ protections

N.C. Supreme Court Justice Phil Berger Jr. speaks to the Bastiat Society of Raleigh on May 10, 2023. (Image from Bastiat Society YouTube channel)

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  • N.C. Supreme Court Justice Phil Berger Jr. says the state's highest court continues to wrestle with property rights protection tied to the "fruits of their own labor" clause in the state constitution.
  • The clause dates back to 1868, though support for the concept extends back to biblical times.
  • Berger has cited the "fruits" clause in a pair of recent dissents. One involved a tax dispute. The other covered local water and sewer "capacity fees."

North Carolina’s constitution has protected people’s rights to the “enjoyment of the fruits of their own labor” for more than 150 years. But the state’s highest court continues to wrestle with the form that protection should take.

That was a key message in N.C. Supreme Court Justice Phil Berger Jr.’s May 10 presentation to the Bastiat Society of Raleigh.

Article I, Section 1 of the state constitution’s Declaration of Rights sets out “certain inalienable rights” North Carolinians enjoy. The fundamental rights include “life, liberty, the enjoyment of the fruits of their own labor, and the pursuit of happiness.”

Berger labels the “fruits” clause interesting. “It is unique and represents a foundational principle for the protection of property rights here in North Carolina,” Berger said.

“You could easily gloss over this phrase and think, ‘Well, my goodness. They took this right from the Declaration of Independence,’” Berger added. “But in North Carolina, the people have enshrined in their constitution a seemingly innocuous clause that packs quite a bit of punch.”

“The ‘fruits of your own labor’ clause is not a relic of the old days, but rather it’s a strong safeguard that’s available to North Carolinians which serves to protect property interests and economic liberty,” Berger said.

Berger labels the clause an “actionable” provision, meaning that plaintiffs can use it as the basis for a civil lawsuit. It “has been and will continue to be a valuable tool that offers robust protections for your rights here in this state.”

North Carolina included the “fruits” clause in the post-Civil War state constitution of 1868. But the idea behind it stretches back to biblical times, Berger said. King Solomon’s writing in the Book of Ecclesiastes makes references that form a potential basis for today’s legal protection. Berger also cited writing from Aristotle, economist Adam Smith, American founders such as James Madison and Thomas Jefferson, as well as philosophers John Locke and Frederic Bastiat.

“In essence, both Locke and Bastiat conveyed that individuals have the right to create and own property that results from their labor or production,” Berger said. “These rights, and protection of those rights by government, is essential to individual liberty and prosperity.”

Albion Tourgee, an Ohio-born Union soldier, moved to Greensboro and practiced law there after the Civil War. He spent much of his time defending the rights of newly freed slaves. Tourgee wrote about protecting the “fruits of your own labor” at the same time that North Carolina added the phrase to the Declaration of Rights.

Even before the clause officially became part of North Carolina’s governing document, Berger noted signs that courts showed some support for the concept. Legal opinions dating back at least as far as 1835 pointed toward an understanding of the basic principle, he said.

A pair of concurring opinions from state Supreme Court Justice Robert Martin Douglas around the turn of the 20th century suggested the clause’s potential importance in protecting North Carolinians’ rights.

The “seminal” 1949 case State v. Ballance focused more attention on the issue of economic liberty, Berger said. But the state Supreme Court also took a step toward what is now known in legal circles as the “rational basis” test. That’s the notion that a law infringing on individual liberty can survive a constitutional challenge if the government has a “rational” justification for the law.

Cases dealing with the “fruits of their own labor” clause have cropped up occasionally during the last 70 years. Berger cited two recent cases in which he wrote dissents citing the provision.

In a tax dispute between Mecklenburg County and the Harris Teeter grocery store chain, the N.C. Supreme Court ruled, 4-3, in August 2021 in favor of the county. The dissenters, all Republican justices, wrote two separate dissenting opinions. Justice Tamara Barringer’s dissent lamented Democratic justices’ support for a “success tax” on Harris Teeter. Berger’s opinion suggested the county’s tax valuation scheme appeared to conflict with the “fruits of your own labor” clause.

One year later, a split court ordered Harnett County to prove that its water and sewer “capacity fees” could be distinguished from an unconstitutional taking of private property. Berger concurred with parts of the opinion, but his dissent cited the “fruits” clause as potentially providing protection to developers who filed suit against the county.

Questions related to the “fruits” clause remain for future cases to decide. “If you have a right that’s enshrined in the constitution, then how does a statute interact with that? Where is the friction?” Berger asked. “What level of scrutiny should the violation of a constitutional right be afforded?”

“Some of the cases early on said you’ve got to overcome a pretty good bar before we’re going to sanction this government activity,” he said. “But slowly and slowly, it moved toward rational basis. … Is that what our founders intended?”

An audience member asked Berger whether the “fruits of your own labor” clause amounts to a “secret weapon” providing additional protection against government intrusion on economic rights.

“Is it a secret weapon? I would say no. Is it something that could be explored more, whether it’s by literature, scholarship, or litigation? Absolutely,” he said.