The North Carolina Constitution contains four provisions that safeguard against state-sponsored cronyism or favoritism in the marketplace. The four clauses — the Exclusive Emoluments Clause, the Monopolies Clause, the Fruits of Their Own Labor Clause, and the Just and Equitable Tax Clause — were drafted to protect economic liberty in different scenarios. Some of these provisions are unique to the North Carolina Constitution, but each of the four clauses lacks an analogous provision in the US Constitution.
State constitutions reflect the history, people, and landscape of a state’s boundaries. Take, for instance, the Exclusive Emoluments Clause, which provides: “No person or set of persons is entitled to exclusive or separate emoluments or privileges from the community but in consideration of public service.”
This clause reflects the framers’ abhorrence of England’s tradition of granting the sovereign and nobility financial support or special privileges based solely on their title.
Or take the Fruits of Their Own Labor clause, reflecting a Lockean view of labor, as one jurist stated, “that the right to work and the right to own what that labor produces is a natural right as important as life and liberty.”
Adopted during Reconstruction, the Fruits of Their Own Labor Clause was informed by attempts to create legal barriers to prevent newly freed North Carolinians from exercising their economic liberty to provide a better life for themselves.
Why the focus on economic liberty and fairness? Because economic liberty is the lifeblood of all civil and political liberties we cherish. Consider a simple example: Freedom of speech is a critical right necessary to engage our government and influence societal change. However, that right is rendered null if one lacks the economic liberty to pay to publish or distribute one’s speech. As for economic fairness, when was the last time you heard of a public corruption scandal that didn’t involve unfair monetary gains?
Why, then, do we continue to see state government handouts to powerful companies in the form of “incentives” to expand or relocate? Why was the governor able to unilaterally prevent people of ordinary occupations from earning an honest living for nearly a year into the pandemic? Because, sadly, these unique provisions protecting economic liberty and fairness were weakened by judicial decisions applying federal constitutional law frameworks to the North Carolina Constitution.
Reasons for the gradual erosion of state constitutional interpretation vary, from seemingly innocuous institutional design to a troubling concern for constitutional governance.
It starts with education. First-year law students must take constitutional law, which typically focuses on the significant decisions interpreting the US Constitution. Students learn of the various constitutional protections for individual liberty against government encroachment and that the federal constitution provides the baseline protection of our rights. Unique provisions in state constitutions often provide additional protections for individual liberty, like the four North Carolina provisions that protect economic liberty and fairness.
Unfortunately, most students never study a state constitution in law school. Many attorneys never learn of the unique provisions in the North Carolina Constitution, and few judges are called to interpret them. Attorneys and judges are generally much more familiar with the federal constitution, due to their education and practice. Law review articles expounding the US Constitution and its history vastly exceed those exploring the nuances of state constitutional interpretation, increasing the difficulty of developing state constitutional doctrines.
As a result, attorneys and judges often interpret state and federal constitutional provisions under the same federal framework, losing some state constitutional history along the way. This is more problematic for the North Carolina Constitution when state and local economic regulations are judged under the framework developed by federal courts for the US Constitution because it transforms North Carolina’s unique constitutional provisions into a redundancy.
Another reason proffered for the demise of the four provisions protecting economic liberty and fairness is related to the reason for their existence. These provisions protect against cronyism in its many forms to prevent the government from selecting economic winners and losers. Typically, the beneficiary of such cronyism is a special-interest group with political influence, as reflected in the cases challenging such actions. For judges who depend on re-election or reappointment to serve, it takes courage to disrupt the status quo and rule against a politically powerful interest group. But the stakes could not be higher, as the independence of our legal system depends on impartiality.
To ensure economic opportunity for all, we need judges and justices who faithfully interpret and apply the North Carolina Constitution based on its text and history. Our constitutional rights, especially to economic liberty, depend on it.