There’s no N.C. equivalent to the celebration surrounding national Constitution Day. Perhaps it’s a good idea to start one.
Not only does the N.C. Constitution determine the structure of state government and spell out protected rights — more than three dozen in Article I’s “Declaration of Rights.” The document also has played a critical role in recent high-profile disputes. They include protracted fights over election maps, the state elections board, voter identification, and limits on state taxation.
If future North Carolinians set aside a day to consider the importance of their constitution, it’s likely that the N.C. Institute for Constitutional Law will play some role.
The group started work in 2004. “Our mission at the time was to draw attention to state constitutional principles,” says attorney Jeanette Doran, who joined NCICL in 2005. “We were trying to enforce state constitutional limitations on government.”
The chief enforcement mechanism at that time involved lawsuits. But the institute’s leaders decided about five years ago to “figure out what would be a better, more effective way to ensure freedom and fairness and economic liberty,” Doran said.
After sitting dormant for several years, NCICL is back in action with Doran as president. She discussed the group’s future during a Sept. 12 relaunch event in Raleigh.
“This time what we’re going to try to do is work collaboratively with not just the legislature, but also with public officials at the city, town, county level, and also with agencies,” Doran said.
“In order to promote both freedom and economic prosperity, we’re going to focus on three principal areas,” she added. “One will be education law, making sure that we can preserve the progress that we’ve made in school choice and making sure that government does not determine — as they have for decades — that they know more about our children than we do as parents. Ultimately, the people who are most responsible for their children and have the greatest vested interest aren’t bureaucrats. They’re moms and dads.”
The other two focus areas involve regulatory reform and the separation of powers, Doran said. She pointed to her own eight-year record of service on the state Rules Review Commission. That group marks the final stop for “virtually every rule or regulation in the state of North Carolina.”
“We really need to make sure that if agencies and bureaucrats are promulgating rules and regulations, that they have the statutory authority to do it, that they are not usurping statutory authority, and — further — that the legislature has a full and comprehensive understanding of the real minutiae of these rules,” Doran said.
“Unfortunately, we don’t have anybody who’s really been focusing on that and certainly not from a separation-of-powers constitutional perspective,” she added.
Focusing on education, regulation, and the separation of powers will force NCICL to keep an eye on another aspect of state public policy. “In order to make sure that all of these things proceed, we’re also going to have to focus on election law and redistricting,” Doran said.
That’s why the first official action of NCICL’s relaunch involved a public-records request linked to redistricting. Doran asked for records related to state Rep. Deb Butler’s highly publicized statement on the N.C. House floor during the Sept. 11 vote to override the governor’s budget veto. Butler suggested some of her Democratic colleagues were working behind closed doors on new legislative election maps. If true, that type of action could have violated a court order for transparent electoral mapmaking.
(Butler later clarified her statement about election maps. She said she had been referring to the open, court-ordered redistricting process.)
“Ladies and gentlemen, that is not the way that process is supposed to go,” Doran said of Butler’s original comments. “The court was crystal clear about it, and we cannot let it slide.”
While Doran said nothing about my suggestion of a state Constitution Day, she is focusing on boosting awareness of this state’s governing document. “It’s never as sexy as the First Amendment or the Second Amendment or the Bill of Rights,” she explained. “Everybody’s always talking about that. Those are obviously really important. But so is the state constitution.”
Among those welcoming NCICL’s return to action are Robert Edmunds. He spent 18 years as a state appellate judge. Edmunds left the bench in 2016 after serving as senior associate justice of the N.C. Supreme Court.
“The courts, the General Assembly, so many institutions here in Raleigh really need education about the state constitution,” Edmunds said in support of Doran during the Sept. 12 event. “Picking up the work that she’s discussing is going to be just invaluable to all of us.”
Another former Appeals Court judge and Supreme Court justice, Bob Hunter, chimed in. “It’s fascinating to me to watch all these little nuances,” Hunter said. “The light goes on in some lawyer’s head somewhere, and he actually sits down and reads the constitution. And then he says, ‘Well, wait a minute. That applies to my case.’”
If NCICL does its job well, the legal landscape in North Carolina would change for the better. “As we go forward, we’re going to be working … trying to prevent constitutional violations instead of having to litigate them after the fact,” Doran said. “It can mean the difference between liberty and prosperity or disaster, quite frankly.”
Success for NCICL might give the state a good reason to celebrate its own Constitution Day.
Mitch Kokai is senior political analyst for the John Locke Foundation.