Opinion: Daily Journal

Constitutions are inherently inconvenient

During the mid-1980s, North Carolina faced a difficult challenge. The state’s population had been surging for decades, placing great demands on the state’s transportation infrastructure.

The primary source of revenue for new roads, the gas tax, couldn’t keep up with demand. As people bought more fuel-efficient cars, they paid less for every mile they drove. There were more North Carolinians traveling more, so total revenues rose — but not in proportion to miles traveled.

It was a structural problem that required a structural response. Then-Republican Gov. Jim Martin proposed increasing the share of the gas tax devoted to highways by funding drivers education and the Highway Patrol with other taxes. He also proposed an increase in the gas tax. In 1986, the Democrat-controlled legislature transferred drivers education but not the Highway Patrol to general-revenue funding and enacted a much larger gas-tax hike than Martin recommended. The effect was to narrow but not eliminate North Carolina’s road-funding gap.

So far, whether you like them or not, these actions represented the legal exercise of the General Assembly’s constitutional authority to legislate and appropriate. What happened next did not.

In 1987, the legislature enacted the Map Act. Its purpose was to reduce the cost of building roads by allowing the state to designate corridors through which future roads would be built and then prohibit development on private property within those corridors. Using eminent domain, the state had always possessed the authority to condemn and take property for future roads, paying owners just compensation. But that was costly. The Map Act promised relief.

It was, however, an unconstitutional measure. “Allowing” people to continue owning property but imposing sweeping restrictions on what they can do with it is to reduce its value. It is itself a government “taking” that requires due process and financial compensation.

After decades of litigation and hundreds of millions of dollars in court-ordered settlements, the legislature has finally repealed the Map Act. Nevertheless, the state is still on the hook for hundreds of millions of dollars in additional payments. The fiscal impact of Map Act settlements is one of the reasons North Carolina’s Department of Transportation has a severe cash crunch at the moment.

I understand why lawmakers found it expedient in 1987 to pass the Map Act, although it was a bad decision. I also understand why today’s politicians might find it expedient to keep Map Act settlements from delaying the completion of popular road projects. But a transportation-relief measure just passed by the General Assembly and signed by Gov. Roy Cooper contains yet another assault on individual rights.

The bill places an annual cap on Map Act settlements and authorizes the state to pay only simple interest, not compound interest, on the delayed reimbursements. These are indefensible attempts to stiff property owners, many of whom have been waiting for decades for compensation. I mean “indefensible” quite literally — numerous attorneys and even some of the lawmakers who voted for the 2019 legislation told Carolina Journal that successfully defending it in court is highly unlikely.

Is it inconvenient for the Department of Transportation to have to pay Map Act victims? Of course it is! But constitutions are by their very nature inconvenient. That’s the whole point of specifying and protecting individual rights in written form. If it were easy to accomplish public ends or satisfy majority interests while also preserving the rights of minorities, the case for constitutions would be less compelling.

There was always a cost to prohibiting development in road corridors. Past lawmakers illegally forced property owners to bear that cost, when in fact all North Carolinians were obligated to share it. That wrongful act had financial consequences. They are inconvenient. That doesn’t mean they can be evaded.

It’s easy to celebrate free speech when the speaker says things you like. It’s easy to embrace the procedural rights enjoyed by criminal defendants when you’re sure of their innocence. It’s the hard cases that test our commitment to constitutional government. Will we earn a passing grade?

John Hood (@JohnHoodNC) is chairman of the John Locke Foundation and appears on “NC SPIN,” broadcast statewide Fridays at 7:30 p.m. and Sundays at 12:30 p.m. on UNC-TV.