School kids are supposed to learn about our rights to life, liberty, and the pursuit of happiness. But few of them hear much about another right spelled out in the N.C. Constitution.
It’s North Carolinians’ right to “the enjoyment of the fruits of their own labor.” It sits between “liberty” and “the pursuit of happiness” in the first article of the state Declaration of Rights.
Though most of us spend little time thinking about the “fruits of your own labor” clause, it’s attracting attention these days at the state’s highest court. A renewed focus on this little-known right could mean good news for the future of economic liberty in the Tar Heel State.
State Supreme Court Justice Phil Berger Jr. focused on the “fruits” clause during a May 10 presentation in Cary. “It is unique and represents a foundational principle for the protection of property rights here in North Carolina,” Berger told the Bastiat Society.
“You could easily gloss over this phrase and think, ‘Well, my goodness. They took this right from the Declaration of Independence,’” Berger said. “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 added.
Berger labels the clause an “actionable” provision. Plaintiffs can use it as the basis for civil lawsuits. It “has been and will continue to be a valuable tool that offers robust protections for your rights here in this state.”
North Carolina wrote the “fruits” clause into the post-Civil War state constitution of 1868. But the idea stretches back to biblical times, Berger said. King Solomon’s writing in the Book of Ecclesiastes could be considered a source for the right, as could the words of Aristotle, economist Adam Smith, American founders James Madison and Thomas Jefferson, and 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.”
Berger cites N.C. court cases as early as 1835 — three decades before the “fruits” clause — that point toward protection of economic rights. Legal arguments based on the “fruits” clause have cropped up from time to time over the 150 years since North Carolina officially recognized the constitutional protection.
Berger referenced the “fruits” clause in two recent dissents. In August 2021, Berger and Republican colleagues broke from Democratic justices in a tax dispute between Mecklenburg County and the Harris Teeter grocery store chain. Berger referenced the clause while suggesting that the county’s tax valuation scheme appeared to conflict with basic constitutional rights.
One year later, Berger cited the “fruits” clause in a legal battle over Harnett County’s water and sewer capacity fees. His dissent cited the clause as a potential safeguard for developers challenging the county’s assessments.
Both dissents involved cases decided when Democrats held a 4-3 majority on the N.C. Supreme Court. Thanks to last year’s elections, Berger and fellow Republicans now outnumber Democrats, 5-2.
One of the court’s newcomers, Justice Richard Dietz, has offered his own public support for the “fruits” clause. Writing in Carolina Journal in February 2021, Dietz explained how the clause “was aimed at preventing established businesses from using political influence to keep out new competition in the marketplace.”
Dietz pointed to “hard cases and faint-hearted judges” that had diminished the impact of North Carolina’s unique economic liberty protections, including the “fruits” clause.
“It’s not too late to save our state’s unique free enterprise protections from a future as meaningless surplusage,” Dietz warned readers. “But the clock is ticking.”
Now Dietz, Berger, and their colleagues can determine how the “fruits” clause will impact today’s ongoing legal disputes.
“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 on May 10. “What level of scrutiny should the violation of a constitutional right be afforded?”
“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.
It’s clear at least some N.C. Supreme Court justices are willing to take another bite at cases dealing with a little-known constitutional provision. Those cases could bear fruit that nourishes defenders of economic freedom.
Mitch Kokai is senior political analyst for the John Locke Foundation.