Constitution of North Carolina

The Constitution of the State of North Carolina governs the structure and function of the state government of North Carolina, one of the United States; it is the highest legal document for the state and subjugates North Carolina law. All U.S. state constitutions are, according to the United States Supreme Court, subject to federal judicial review; any provision can be nullified if it, in the view of a majority of the Justices of the Supreme Court, constituted from time to time, conflicts with the US Constitution or any federal law pursuant to the Constitution, even if the identical language was previously upheld as valid by the court.[1]

The first North Carolina Constitution was created in 1776 after the American Declaration of Independence. Since the first state constitution, there have been two major revisions and many amendments. The current form was ratified in 1971 and has 14 articles.

The three constitutions North Carolina has had are:

• 1776: as the first constitution of the independent state. The Declaration of Rights was ratified the preceding day.
• 1868: Framed in accordance with the Reconstruction Acts after North Carolina was readmitted into the Union. It was a major reorganization and modification of the original into fourteen articles. It also introduced townships which each county was required to create, the only southern state to do so.
• 1971: Minor consolidation of the 1868 constitution and subsequent amendments.

History

Through its history, North Carolina has had three Constitutions: the Constitution of 1776, the Constitution of 1868, and the Constitution of 1971.

Constitution of 1776

The Fifth North Carolina Provincial Congress ratified the first constitution in December 1776. This draft was not submitted to a vote of the people, but was accompanied by a Declaration of Rights. Although the constitution affirmed the separation of power between the three branches of government, the General Assembly held the true power. Until 1836, the General Assembly members were the only state officials who were elected by the people. The General Assembly picked Judges, the Governor and the members in the Council of State. Judges had life terms and governors had a one-year term. The Governor had little power and in many cases needed the consent of the Council of State to exercise the power that the office did hold. The Governor was also held to strict term limits; a person could only hold the office three terms in every six years. The constitution established a judicial branch, but did not well define this branch's structure. The constitution also lacked a system of local government. Universal suffrage was not an element of this constitution. Only landowners could vote for Senators until 1857. To hold state office required land ownership until 1868.[2]

Convention of 1835

North Carolina State Constitutional Convention of 1835

See also: North Carolina Constitutional Convention of 1835

Dissatisfied with the central role of the General Assembly, a state constitutional convention was called in 1835. Out of the convention came many amendments. Among those changes was fixing the membership of the Senate and House at their present levels, 50 and 120. Also, the office of Governor became popularly elected. These changes gave the more populous western counties more of a say in government but still favored those who owned property, since this was required to vote and hold office. The vote was taken away from freed slaves in this convention. The convention approved the changes on July 11, 1835. The convention's proposed changes were adopted by vote of the people on November 9, 1835.[3]

Convention of 1861–1862

The Convention of 1861–1862 was called to revise the constitution to remove North Carolina from the United States. The procedure used to amend the constitution did not need a vote of the people, a procedure that was active until removed in 1971.

Constitution of 1868

In 1865, Governor William W. Holden called for a Conference to write a new Constitution; it was rejected by a popular vote. Two years later, they reconvened. The new Constitution gave more power to the people and to the governor.[4] "For its time, it was a progressive and democratic instrument of government."[5] Akin to the Fourteenth Amendment to the United States Constitution, also adopted in 1868, it was product of the winning side in the Civil War: the (anti-slavery) Republicans and a few scalawags. "It was highly unpopular with the more conservative [white supremacist, Democratic] elements of the state."[5]

From 1869 through 1968, there were submitted to the voters of North Carolina a total of 97 propositions for amending the Constitution of the State. All but one of these proposals originated in the General Assembly. Of those 97 amendment proposals, 69 were ratified by the voters and 28 were rejected by them. Due to the many amendments, many provisions in the constitution became antiquated, obsolete, and ambiguous. The document had simply become difficult to read and interpret. By 1971, there were 200 state agencies.[6]

Constitution of 1971

The draft that later became the Constitution of 1971 began with a study into needed changes by the North Carolina State Bar in 1967. The study outlined a vastly improved and easily ratifiable document. The draft constitution logically organized topics and omitted obviously unconstitutional sections. The language and syntax was also updated and standardized. The study separated from the main document several amendments that it felt were necessary, but were potentially controversial. The main document passed the General Assembly in 1969 with only one negative vote in seven roll-call votes. On November 3, 1970, the proposed Constitution of 1971 was approved by a vote of 393,759 to 251,132.

Since the Constitution of 1971, there have been over twenty amendments. The majority of these amendments extend the rights of citizens, or extend the government the ability to issue bonds. One notable exception was in 2012, when an amendment was added to prevent recognition of same-sex marriage. The following are significant amendments made since the 1971 constitution:

• Prohibiting all capitation and poll tax.
• Omitting the limitation on property tax of $0.20 per $100 valuation.
• Creating a state income tax to be computed on the same basis as the federal income tax
• Allowing the Governor and Lieutenant Governor to serve two consecutive terms (previously, office holders were limited to one term).
• Requiring the state to run a balanced budget.
• Requiring judges to be lawyers.
• Adding Victims Rights to (and expanding and clarifying the said rights in) the Declaration of Rights.
• Giving the Governor the veto power.
• Prohibiting a person convicted of a felony from holding the office of county sheriff.
• Defining a marriage between one man and one woman to be the only legal domestic union to be recognized by the state. (See North Carolina Amendment 1.)

Executive Organization Act

Article III, Section 11 of the North Carolina Constitution, approved by voters on November 3, 1970, required the legislature to reduce the more than 300 administrative departments, agencies, and offices to no more than 25 principal administrative departments by 1 July 1975. This law lead to the creation of 19 principle offices or departments, including the 10 members of the North Carolina Council of State, elected by the voters (governor, lieutenant governor, secretary of state, state auditor, state treasurer, superintendent of public instruction, attorney general, and commissioners of agriculture, labor, and insurance) and the nine member North Carolina Cabinet departments headed by secretaries selected by the governor,[7] and (since 2017) consented to by the Senate.

Synopsis of the North Carolina Constitution

The current North Carolina Constitution contains a Preamble and 14 articles. Each of the articles covers a different area, with the last article including all miscellaneous topics. Each article is further divided into sections. This constitution incorporates amendments into the document, unlike the United States Constitution which only appends amendments.[8]

Preamble

We, the people of the State of North Carolina, grateful to Almighty God, the Sovereign Ruler of Nations, for the preservation of the American Union and the existence of our civil, political and religious liberties, and acknowledging our dependence upon Him for the continuance of those blessings to us and our posterity, do, for the more certain security thereof and for the better government of this State, ordain and establish this Constitution.[9]

Article I – Declaration of Rights

Each of the 37 sections of Article I outline a separate recognized right. Many of the sections give more depth to the rights covered by the Bill of Rights. The state constitution also secures additional rights, for example the right to a public education and to open courts. Also of note, this section specifically denies the state the ability to secede from the United States and declares that each citizen of this State owes paramount allegiance to the Constitution and government of the United States. Section 38, added in 2018, is the newest addition to this article. This section declares the right to hunt and fish.[9]

Article II – Legislative

Article II declares that all legislative powers in North Carolina are given to the General Assembly. The General Assembly consists of a Senate and a House of Representatives, with 50 and 120 members, respectively. Guidelines for the formation of voting districts and qualification for office are also covered. Each house has a term of three years. This article also gives the governor the power to veto public bills, defined as bills affecting more than 15 counties, in most circumstances. Veto power was denied the governor until 1996 when the constitution was amended.[9] North Carolina was the last state to extend this power to its governor.[10]

Article III – Executive

The governor is vested with all executive authority in Article III. The duties of the governor are defined as is the process of succession, should the governor die or become incapacitated. Holders of the governor office are limited to two consecutive terms. The Council of State, a cabinet-like body, is filled with eight popularly elected officials, in addition to the governor and lieutenant governor. This article also defines and mandates a balanced budget.[9]

Article IV – Judicial

Article IV defines the make-up the judicial branch of the state and prohibits the legislature from inhibiting its function. Similar to the federal government, the power to impeach state officials and judges, in the cross-hairs, are given to the state House of Representatives. The Senate can remove a person from office with a 2/3 majority vote after an impeachment. This article also deals with the necessary qualifications of a judge and confers the power of judicial review with the state's Supreme Court.[9]

Article V – Finance

Article V gives the state government the right to tax its citizens unlimitedly under certain guidelines. It authorizes an up to 7% income tax and also limits the ability to issue public bonds.[9]

Article VI – Suffrage and Eligibility to Office

Article VI provides every person who is at least 18 years, an American Citizen, living within North Carolina, and (beginning in 2019, when in-person) has a voter ID the right to vote.[9] This right is denied to felons (when any part of a felony sentence, including probation, is active) and people illiterate in English. This article also sets the eligibility to hold office. To hold an elected state office a person cannot fall in any of the following categories:

1. Younger than 21 years of age
2. Denies the existence of God in the Government of North Carolina (see Infeasible provisions)
3. A person who is not qualified to vote in an election for that office
4. Felon (See felony disenfranchisement in the United States)
5. Already holds a state or federal office.

Article VII – Local Government

Article VII gives the general assembly the power to define the boundaries of governmental subdivisions (counties, towns, cities). It limits the distance of newly incorporated towns or cities from established towns or cities based on the established town or city's population, subject to a waiver by 3/5 absolute majority. The office of sheriff is provided for each county.[9]

Article VIII – Corporations

Article VIII defines corporations. It also gives the General Assembly the right to create and regulate corporations.[9]

Article IX – Education

Article IX makes public education compulsory for all able-bodied children, unless educated by other means. The North Carolina State Board of Education is defined here and given the power to regulate all free public education in the state. This article demands that the General Assembly establish a system of higher education and states that higher education should be free, as far as practicable.[9]

Article X – Homesteads and Exemptions

Article X prevents the forced sale of a person's primary residence to pay for a debt, unless the house was specifically used as collateral for a loan. Females are also able to maintain full ownership of all property they own when they marry, under this article. Also, life insurance policies that are paid to a spouse or child are exempt from claims of debt from the estate of the deceased.[9]

Article XI – Punishments, Corrections, and Charities

Article XI describes the only punishment methods to be used by the state. It specifically only allows the death penalty in cases of murder, arson, burglary, and rape. This article gives the responsibility of the public welfare to the General Assembly.[9]

Article XII – Military Forces

This short article states: The Governor shall be Commander in Chief of the military forces of the State and may call out those forces to execute the law, suppress riots and insurrections, and repel invasion.[9]

Article XIII – Conventions; Constitutional Amendment and Revision

Article XIII describes the two ways the constitution may be amended: by popular convention or through legislation. Legislation is the most common way to amend the constitution. The last time the constitution was amended by convention was in 1875. In a legislative action, an amendment must pass by three-fifths in both houses of the General Assembly and also obtain a majority of a popular vote.[9]

Article XIV – Miscellaneous

The final article of the constitution covers topics not under other articles.[9] Topics of sections in this article include:

• Setting Raleigh as the capital.
• Makes permanent the current state border.
• Demanding the General Assembly uniformly apply laws to the state.
• Gives any law that was legally enacted before this constitution the ability to remain in effect unless the law conflicts with the constitution.
• Provides the General Assembly the ability to conserve natural resources by the creation of parks and the enactment of laws.
• Section 6 provides that marriage is to be defined as between one man and one woman (see also: North Carolina Amendment 1).[11] This section was declared unconstitutional by federal courts in 2014.[12]

Infeasible provisions

As per the Federal Supremacy Clause, all Federal law and the Constitution of the United States overrule the North Carolina Constitution. There are several provisions in the current North Carolina Constitution that may conflict with federal law or the US Constitution.

At least two provisions are not enforced either because they are known to be void or would almost certainly be struck down in court, even though they were carried over verbatim from the 1868 Constitution.

• Article 6, section 8 disqualifies from office any person who shall deny the being of Almighty God. However, in 1961, the federal Supreme Court, in Torcaso v. Watkins threw out a similar provision in the Maryland Constitution on the grounds that it violated the First and Fourteenth Amendments to the federal Constitution. The First Amendment bars Congress from passing any law "respecting an establishment of religion," and this provision has long been considered binding on the states under the Due Process Clause of the Fourteenth Amendment. The North Carolina Attorney General opined that the provision likely does not comply with the First Amendment.[13] On December 7, 2009, Cecil Bothwell was sworn in as Asheville City Councilman, and was revealed to be an atheist. Former NAACP president H. K. Edgerton threatened to file a lawsuit against the city.[14]
• Article 6, section 4 requires that a person be literate in the English language before registering to vote. This provision was widely used to effectively disenfranchise African-American voters in the Jim Crow era. As such, it is widely held that this section violates the Voting Rights Act. However, several attempts to remove this provision have failed. On April 25, 2017, the N.C. House voted unanimously to pass House Bill 148, a bipartisan bill to start the process of repealing the literacy requirement for voting in the state.[15]

In addition, federal and state court decisions have narrowed the scope of at least two sections of the constitution. Article 2, sections 3 & 5, sub-section 2 state that counties must not be divided when drawing state legislative districts. This provision is known as the "Whole County Provision." However, in 1981, the federal Justice Department ruled that this provision was inconsistent with the Voting Rights Act. The state thus ignored the Whole County Provision until 2002. That year, the North Carolina Supreme Court ruled that the state constitution's equal protection clause presumed single-member districts and was thus a limitation on the Whole County Provision. It can also be argued that the "one person, one vote" rule from Reynolds v. Sims also limits this provision.[16]

Section 2 of Article 11 ("Death Punishment") limits executions to "...murder, arson, burglary, and rape[.]". Per Kennedy v. Louisiana, the last three are inapplicable.

North Carolina Amendment 1's declaration to not recognize same-sex marriages is contrary to the Fourteenth Amendment to the United States Constitution as interpreted by the United States Supreme Court in Obergefell v. Hodges.

See also

• Law of North Carolina

References

1. For example, in Plessy v. Ferguson, Berea College v. Kentucky, Gong Lum v. Rice, and subsequent cases, spanning a time period of approximately 60 years, the United States Supreme Court upheld the validity of constitutional and statutory provisions requiring separate schools and other public accommodations for white and black persons. In 1954, however, without any change in the text of the relevant part of the United States Constitution, the Court held, in Brown v. Board of Education, that such provisions were unlawful.
2. "North Carolina Constitution of 1776". Yale Law School. 1776. Retrieved September 4, 2019.
3. Jeffrey, Thomas E. (1996). "1835 Constitutional Convention". NCPedia. Retrieved September 23, 2019.
4. "The 1868 constitution". Learn NC. Retrieved March 5, 2017.
5. Sanders, John L. (2005). "Our Constitutions: A Historical Perspective" (PDF). North Carolina Secretary of State. Retrieved October 15, 2018.
6. "1868 State Constitution" (PDF). NCLeg.net. Retrieved September 7, 2019.
7. Williams, Wiley J. (2006). "Executive Organization Acts". NCPEDIA. Retrieved December 6, 2019.
8. "North Carolina Constitution of 1971". NCLEG.GOV. Retrieved October 8, 2019.
9. "North Carolina State Constitution". NCGA. Retrieved December 27, 2016.
10. "Gubernatorial Veto Instituted, 1996". This Day in North Carolina History. N.C. Department of Natural and Cultural Resources. Retrieved May 18, 2019.
11. "General Assembly of North Carolina Session 2011" (PDF). Retrieved November 1, 2019.
12. Memorandum of Decision and Order from U.S. District Court for the Western District of North Carolina
13. Opinion of Attorney General to Mr. Clyde Smith, Deputy Secretary of State, 41 N.C.A.G. 727 (1972)
14. Zucchino, David (December 20, 2009). "Councilman under fire for atheism". LA Times.
15. "Should NC drop its literacy requirement for voting? House wants to update constitution". newsobserver. Retrieved April 26, 2017.
16. "Archived copy" (PDF). Archived from the original (PDF) on July 16, 2011. Retrieved February 24, 2009.CS1 maint: archived copy as title (link)

External links

• Full text of the North Carolina State Constitution
• North Carolina Constitutions and Amendments, NC Legislative Library
• Official history of the North Carolina Constitution
• Amendments to the constitution of North Carolina, 1776-1996, by John L. Sanders & John F. Lomax, Jr, UNC Institute of Government (1977)
• Book on the Convention of 1835 by Henry G. Connor
• Text of the 1776 Constitution