The recent U.S. Supreme Court ruling in the campaign-finance case Citizens United v. FEC reminded us about the importance of the U.S. Constitution. State constitutions also play a critical role in determining what government can do for — and to — the people it’s supposed to serve. Dr. John Dinan, associate professor of political science at Wake Forest University, recently discussed state constitutions with Mitch Kokai for Carolina Journal Radio. (Click here to find a station near you or to learn about the weekly CJ Radio podcast.)
Kokai: First of all, a lot of people do think about the U.S. Constitution, at least when they’re hearing about a Supreme Court justice or a Supreme Court case. How important are the state constitutions, like the North Carolina Constitution or those of every other state?
Dinan: They’re very important. I might be inclined to say that because I study them and I want to make a case for them, but anybody who spends a significant amount of time looking at state constitutions, and just law in this country, realizes how crucial they are. First of all, the state constitutions preceded the U.S. Constitution. The U.S. Constitution, they don’t draft that until 1787. Other states — Virginia, North Carolina — drafted theirs in 1776. So, in fact, in some ways, the state constitutions were drawn on by those in Philadelphia drafting the federal Constitution. But even if we leap forward to today, all we need do is look at crucial hot-button issues such as same-sex marriage, where, in a number of states — six states have now legalized same-sex marriages — in half of those states, it has been done so through judicial interpretation of state constitutional provisions. One could give a number of other examples of that sort, but we don’t have to look far to see why, in current public policy issues, state constitutions mean something for governance.
Kokai: The U.S. Constitution and state constitutions cover different aspects of what government agencies can do. How are they different?
Dinan: Well, they’re different in a number of ways, and let me just set out a few ways. First of all, the federal government is a government of … enumerated powers. So the federal government is only supposed to be exercising powers that are enumerated in the Constitution. State governments, on the other hand, are governments of plenary powers. They have full powers that aren’t exercised by the federal government and that are reserved to the states. And so that means that state governments have to spell out how is education going to be governed, who has the right to vote in that state, or what are the specifications. Now, these are within federal restrictions, as you can’t discriminate on the basis of race, sex, or other provisions. But there [are] a lot of decisions that states have to make in terms of who can vote, how you’re going to set up your education article, how you’re going to regulate corporations. So there’s a lot of other material that’s dealt with in state constitutions. Now, once you get beyond that, state constitutions have differed. They’ve made their documents much more flexible than the federal Constitution. U.S. Constitution — 27 changes, 225 years. State constitutions — much more than that. In fact, the biggest of all, Alabama’s, had 800 changes to its state constitution alone. Now, that’s an outlier. But in short, state constitutions — often North Carolina voters have a chance every two years to go forward, and on their ballot they will see, “Do you want to approve this change to the state constitution?” It’s been a long time since you’ve had a debate at the U.S. level about a change to the U.S. Constitution.
Kokai: There are 50 different state constitutions. How does North Carolina’s stack up against the others?
Dinan: North Carolina’s is actually not changed as frequently as some other states. As I mentioned, Alabama has changed very frequently. Louisiana has changed very frequently. The North Carolina Constitution — which really, 1971is the last time they actually drafted a new constitution, or it took effect in 1971 — since then, there have been only 34 changes to that constitution. So, compared to the U.S. Constitution, that’s a lot of changes. But compared to some other states, it’s not changed so much.
What are some of the distinctive aspects? If you really look at the North Carolina Constitution, first of all, like some other Southern states, there is an explicit prohibition against seceding from the Union. And that, of course, bears the imprint of the Reconstruction era, when Southern states that were redrafting their constitutions had to put that in and therefore pledge allegiance to the federal government. So that’s one aspect. North Carolina also has some distinctive provisions. For instance, it specifies the crimes … that can be punished by death and actually lists them. Most other states, that’s completely a determination of the legislature. Here, North Carolina actually goes and specifies those. So there’s a prohibition against secret societies in the Declaration of Rights of [the] North Carolina Constitution. So there are some unusual, some idiosyncratic provisions that betray either the period in which North Carolina was redrafting its constitution or the particular culture of those who were drafting it.
Kokai: We’ve talked about some of the distinctive provisions in North Carolina’s Constitution. The constitution also gets itself in the news quite a bit, even during recent months. What are some of the things that we’ve heard about in recent months that have dealt directly with the state constitution?
Dinan: Let me start with one part of the North Carolina Constitution that actually was litigated at the U.S. Supreme Court in the last year. It’s a complicated procedure. It’s the whole-county provision. It says you can’t, when you’re drawing up legislative district lines, you can’t divide counties. This is a longstanding provision of the North Carolina state Constitution. Well, how about if, for the purpose of drawing districts so that you increase the chances that you have more minority members of the legislature? Can you divide up the counties for that purpose? It actually went before the U.S. Supreme Court [in 2009], and the U.S. Supreme Court said, no, the North Carolina provision is clear. You may not divide up these counties for the particular purpose that they sought to divide them up for. That went all the way up to the U.S. Supreme Court.
I’ll give another example, and this came up very recently. Does the North Carolina Constitution’s education article specify that the superintendent of public schools must in fact be in charge of public schools? Or could the governor establish someone else to essentially run the schools?
Kokai: As the schools’ CEO.
Dinan: The CEO as it were. Well, that case has been litigated and a judgment came down. And the judgment came down that the North Carolina Constitution is clear: The superintendent elected for that position is to be essentially in charge of the schools for that purpose.
Another issue — this goes back a few years, but it came up in the last year — how about the state lottery? Was the state lottery created in a legal fashion? Well, go buy lottery tickets. The lottery is up and running, isn’t it? Well, a question came before the North Carolina courts. It turns out that a provision of the North Carolina Constitution says that all bills — and I’ll give it shorthand here —all revenue bills must be read on three separate days in the legislature. Well, it turns out that the bill creating the lottery, which was a product of this last-minute compromise, last-minute effort to get enough [votes], was not read on the requisite number of days. Well, was the lottery in violation of the North Carolina Constitution then? It came before the North Carolina Appeals Court, and then, on a divided vote in the North Carolina Supreme Court, therefore upholding the North Carolina Appeals Court, they said it turns out that this was not a revenue bill, it was a bill of a different kind. Therefore the lottery can continue; its creation did not violate the state constitution.
Those are some pretty key issues: lottery, governance of schools, how you draw district lines. The judges all had to go to the North Carolina Constitution and say, to what extent are we in compliance with that constitution.