Most of the nine justices on the United States Supreme Court espouse some version of the originalist school of constitutional interpretation. Starting early next year, most of the seven justices on the North Carolina Supreme Court will be originalists, too.
I know many politicians and activists find these developments worrisome. Some are in a panic. They ought not to be. Contrary to what they assume or have been told, originalists do not believe the Founders got everything right when they wrote the federal constitution in 1787, or that North Carolina’s constitution should never change. Originalists don’t reflexively oppose all modifications to the structure and operations of government, or think the same policies that served our needs a hundred years ago will inevitably do the same today.
Originalism isn’t about what kind of government we ought to have, or what policies ought to be adopted. It’s about who gets to decide these questions, and how.
Consider a case here in our own state: the seemingly interminable school-finance litigation known as Leandro vs. State of North Carolina. Back in 1994, plaintiffs in several low-wealth counties sued the state, arguing both that they enjoyed a right to public education under the state constitution and that the state’s funding system constituted a violation of that right.
At every stage of the litigation, the plaintiffs won on the first claim — and deserved to. Multiple passages of the state constitution can be reasonably construed to establish a civil right to what the state’s high court described as the opportunity for “a sound, basic education.” Until recently, however, the plaintiffs made little headway with their second claim: that North Carolina’s system of school finance, which relies primarily on state revenue but somewhat on local revenue, was a constitutional violation that a state court had the power to remedy.
After all, the same constitution that established public education as a civil right also clearly assigned to the state legislature the sole authority to appropriate state revenue. This authority has been upheld by the North Carolina Supreme Court multiple times, most recently in a 2020 decision by a Democratic-majority court.
That case involved a budget dispute between the Republican-led General Assembly and Democratic Gov. Roy Cooper. By a 6-1 margin, the high court agreed with the legislature. “In drafting the appropriations clause, the framers sought to ensure that the people, through their elected representatives in the General Assembly, had full and exclusive control over the allocation of the state’s expenditures,” wrote Democrat Sam Ervin IV in the majority’s ruling. “As a result, the appropriations clause ‘states in language no man can misunderstand that the legislative power is supreme over the public purse.’”
Alas, two years later Ervin would join the other three Democrats in trying to resolve the Leandro dispute by ordering the legislature to fund a school-reform plan drawn up by an out-of-state consulting firm. There is no plausible way to reconcile the two rulings. Nor is there any plausible way to reconcile the Leandro ruling with the original public meaning of the state constitutional provisions regarding public education. No one thought at the time the provisions were adopted that they gave state judges the authority to second-guess how much the General Assembly might decide to spend on teachers, textbooks, school buildings, or other educational expenses.
Now, perhaps North Carolina ought to spend much more on those items. Or perhaps we ought to give the judicial branch the authority to assess whether the state’s public schools are adequately funded, and to appropriate state revenues accordingly even if the General Assembly disagrees.
If the latter, an originalist would argue, the proper procedure is to elect like-minded legislators who would then place a constitutional amendment on the ballot for voter approval. That’s how past constitutional flaws, sins of omission, or sins of commission have been amended or overwritten.
It’s not the job of judges to decide such questions. That’s what originalism means. In this context, that’s all it means.