The guardrails are gone. It’s constitutional crisis time in North Carolina | Opinion
We usually think of a “constitutional crisis” as a particular event or trauma, stressing our legal foundations or frameworks. Richard Nixon’s Saturday Night Massacre, Bill Clinton’s lies and impeachment, the Jan. 6 coup attempt are examples.
But scholars are apt to define such crises more categorically. I’m drawn to Jessica Silbey’s (Northeastern University) straightforward roadmap: “A constitutional crisis (occurs) when one branch of government hijacks our divided system to change the rules in its favor, making the other branches subservient instead of equal and the people’s voices dim or ineffective, thus handcuffing democracy.”
Sound familiar?
The North Carolina General Assembly began its democracy-dismantling crusade a dozen years ago by working enthusiastically to disenfranchise its apparent adversaries. So vigorous were its efforts to restrict the electoral rights of Black Tar Heels — its “widespread, serious and longstanding constitutional violations,” as the federal courts put it — that they severed the obligations of popular sovereignty, which ensure that “elected officials have ‘an habitual recollection of their dependence on the people.’ ”
Then the sights were set on others — Democrats, poor people, LGBTQ folks, women, the independent courts, traditional gubernatorial and attorney general authorities, disfavored municipal governments — the list was long, ambitious and greedy. They seemed to have found their sweet spot — using state powers to favor themselves and their friends and to handicap and marginalize their enemies. Permanently.
One might have hoped that, by now, such an unshaken dominance would have led to an ease, a relaxation of the suppressive fervor, a modest grace in victory. But it was not to be. As this legislative session has brutally shown, the gas pedal is fully pressed to the floor. An end to the separation of powers in North Carolina is the open and patently embraced ambition. The list of new broken boundaries is robust.
Republican lawmakers will now appoint a crop of special judges. They gave “jaw dropping” investigative powers to the Joint Legislative Commission on Government Operations — triggering cries of “dark government” and “secret police.” They took power from the governor to appoint members of the state board of elections, the public utilities commission, and a long list of other entities.
They claimed new authorities to control the agency that oversees judicial ethics, select the governing board for community colleges, and choose the UNC-Chapel Hill and N.C. State boards of trustees. They now control the ballot explanations for proposed constitutional amendments. They shielded lawmakers’ records from public view. And as they roll out their unfettered political gerrymanders, they changed the open records law to hide the Republican map-making process.
Maybe all this, alone, wouldn’t warrant the moniker “constitutional crisis.” But, as ever, there’s more. Many of these appointment power alterations are clearly unconstitutional under N.C. law. But Senate Leader Phil Berger breezily responded: “we’ll see what the courts say.” Meaning, I’d guess, we’ll see what the new Republican court says.
The freshly-minted Republican court has declared its fealty to the General Assembly, “the great and chief department of government, the sacrosanct demonstrated will of the people.” The justices will deploy a “heavy presumption in favor of the constitutional propriety” of the handiwork of Republican lawmakers. Berger likes his chances.
At the same time, the new budget (oddly) raised the mandatory retirement age for appellate judges to 76, benefiting N.C. Supreme Court Chief Justice Paul Newby, and gave him more discretion to appoint reviewing courts in constitutional cases. The budget bill. I’m just saying.
The guardrails are off in North Carolina. It’s crisis time.
Contributing columnist Gene Nichol is a professor of law at the University of North Carolina-Chapel Hill.
