Opinion: Daily Journal

There’s no value judgment in labeling an action constitutional

The word “constitutional” does not function as a synonym for “good.” Likewise, it’s inappropriate to substitute “unconstitutional” for “bad.”

Those distinctions might seem clear. But recent debates on Jones Street cast doubt on some political observers’ understanding of the differences.

Take, for example, the recent hubbub about adding justices to the N.C. Supreme Court. The N.C. General Assembly has clear constitutional authority to add up to two more associate justices to the state’s highest court.

The state Constitution tells us that the court “shall” have a chief justice and six associate justices. But there’s nothing vague about the following language in Article IV, Section 6 that says “the General Assembly may increase the number of Associate Justices to not more than eight.”

Pointing out that fact does not constitute an endorsement of Supreme Court expansion. Calling that possibility constitutional does not mean labeling it good.

Some within the media and the political chattering class seem to have misread “could expand,” a recognition of the idea’s constitutionality, as “should expand,” a value judgment of the idea’s merits. Otherwise the John Locke Foundation would not have attracted attention for “floating” or “supporting” such a plan.

There was similar confusion about actions the General Assembly took during last week’s unexpected special session. One piece of that session’s House Bill 17 was designed to ensure that “The Governor shall nominate and with the advice and consent of a majority of the Senators appoint all officers whose appointments are not otherwise provided for.”

That’s language straight from Article III, Section 5(8) of the N.C. Constitution. The Senate has clear constitutional authority to perform the “advice and consent” function, even if it has ignored that provision in the past.

Pointing to that fact does not represent an endorsement of the idea, but some observers have missed the distinction. Others have gone so far as to characterize the General Assembly’s assertion of its constitutional authority as representing some sort of “coup.”

Let that sink in for a moment. The N.C. Constitution establishes the structure of state government. That constitution calls for the Senate to provide “advice and consent” on gubernatorial appointments.

Yet some contend that a move to restore compliance with the Constitution — the state’s governing document — represents “a sudden and decisive action in politics, especially one resulting in a change of government illegally or by force,” the standard definition of a coup d’etat.

Some will read the proceeding paragraphs and conclude that this column endorses the provision of House Bill 17 dealing with new Gov. Roy Cooper’s top appointments. That would be a mistake.

Saying it’s constitutional doesn’t mean saying it’s good. As John Locke Foundation Chairman John Hood has noted, the appointment provision was one of several “major changes in the structure and operation of state government” that “deserved more deliberation than a brief Christmastime session allowed.”

But just as labeling an action constitutional doesn’t mean it’s also good, an action that one considers bad is not necessarily unconstitutional. It’s unfortunate that those who oppose the Republican-led General Assembly have employed the “unconstitutional” claim on an increasingly frequent basis.

They’ve used the tactic to fight Opportunity Scholarship vouchers, teacher tenure changes, election maps, and more. Sometimes they’ve found judges friendly to their arguments. Other times they’ve failed.

In some cases, they’ve cried “unconstitutional” when the facts appear to point clearly in the opposite direction. Take Wake County Democratic Rep. Darren Jackson’s challenge last week of the special session convened to deal with state government organizational questions.

Yes, Republicans prepared for the session without warning their Democratic counterparts. Yes, they waited until hours before the session started to announce it publicly. Yes, they condensed the legislative process into a tight time frame that omitted the careful deliberation that tends to improve legislation.

Jackson and his colleagues had justification for calling the process bad. But unconstitutional? Article II, Section 11(2) clearly says legislative leaders “shall” convene an extra legislative session by joint proclamation once three-fifths of the members of both the House and Senate have signed on to the idea. Both chambers met that standard.

In lodging his protest, Jackson suggested that the word “shall” required Republicans to call that session earlier than they did. The constitution offers no clear guidance on that front, though, and it would be hard to argue that lawmakers could have assembled any earlier than they did for the disputed session — literally minutes after another session conducted for disaster relief had concluded.

Jackson hinted at his real goal later in the disputed session. Answering Republican Rep. Michael Speciale’s assertion that the session complied with the constitution, Jackson said, “You don’t get to decide what’s constitutional. I don’t get to decide what’s constitutional. The Supreme Court of North Carolina will decide if this has been constitutional.”

“I don’t disparage you by arguing that it’s unconstitutional, OK?” Jackson added. “That’s just my argument. That’s what my constituents asked me to do.”

If Jackson’s constituents asked him to argue that the special session was unconstitutional, regardless of the facts, perhaps they need to take a closer look at the thesaurus.

Mitch Kokai is senior political analyst at the John Locke Foundation.