North Carolina has had three Constitutions in her history as a State:
the Constitution of 1776, the Constitution of 1868, and the Constitution
of 1971.
Constitution of 1776
Drafted and promulgated by the Fifth Provincial Congress in December,
1776, without submission to the people, the Constitution of 1776 and its
separate but accompanying Declaration of Rights sketched the main outlines
of the new state government and secured the rights of the citizen from
governmental interference. While the principle of separation of powers
was explicitly affirmed and the familiar three branches of government
were provided for, the true center of power lay in the General Assembly.
That body not only exercised full legislative power; it also chose all
the state executive and judicial officers, the former for short terms
and the judges for life.
Profound distrust of the executive power is evident throughout the
document. The Governor was chosen by the legislature for a one-year
term and was eligible for only three terms in six years. The little
power granted him was hedged about in many instances by requiring for
its exercise the concurrence of a seven-member Council of State chosen
by the legislature. Judicial offices were established, but the court
system itself was left to legislative design. No system of local government
was prescribed by the Constitution, although the offices of justice
of the peace, sheriff, coroner, and constable were created.
The system of legislative representation was based on units of local
government. The voters of each county elected one Senator and two members
of the House of Commons, while six (later seven) towns each elected
one member of the House. It was distinctly a property owner's government,
for only landowners could vote for Senators until 1857, and progressive
property qualifications were required of members of the House, Senators,
and the Governor until 1868. Legislators were the only state officers
who were elected by the people until 1836.
The Convention of 1835
Dissatisfaction with the legislative representation system, which gave
no direct recognition to population. resulted in the Convention of 1835.
Extensive Constitutional amendments adopted by that Convention were
ratified by a vote of the people, 26,771 to 21,606 on November 9, 1835.
The Amendments of 1835 fixed the membership of the Senate and House
at their present levels, 50 and 120. The House apportionment formula
then devised gave one seat to each county and distributed the remainder
of the seats--nearly half of them at that time--according to a mathematical
formula favoring the more populous counties. From 1836 until 1868, Senators
were elected from districts laid out according to the amount of taxes
paid to the State from the respective counties, thus effecting senatorial
representation in proportion to property values.
The Amendments of 1835 also made the Governor popularly elective for
a two-year term, greatly strengthening that office; relaxed the religious
qualifications for office holding; abolished free Negro suffrage; equalized
the capitation tax on slaves and free white males; prohibited the General
Assembly from granting divorces, legitimating persons, or changing personal
names by private act; specified procedures for the impeachment of state
officers and the removal of judges for disability; made legislative
sessions biennial instead of annual; and provided methods of amending
the Constitution. Following the precedent established in amending the
United States Constitution, the 1835 amendments were appended to the
Constitution of 1776, not incorporated in it as is the modern practice.
The Convention of 1861-62
The Convention of 1861-62, called by act of the General Assembly, took
the State out of The Union and into the Confederacy and adopted a dozen
Constitutional amendments. These were promulgated by the Convention
without the necessity of voter approval, a procedure that was permitted
by the Constitution until 1971.
The Convention of 1865-66
The Convention of 1865-66, called by the Provisional Governor on orders
of the President, nullified secession and abolished slavery, with voters
approval, in 1865. It also drafted a revised Constitution in 1866. That
document was largely a restatement of the Constitution of 1776 and the
1835 amendments, plus several new features. It was rejected by a vote
of 21,770 to 19,880 on August 2, 1866.
Constitution of 1868
The Convention of 1868
The Convention of 1868, called upon the initiative of Congress but
with a popular vote of approval, wrote a new Constitution which the
people ratified in April of 1868 by a vote of 93,086 to 74,016. Drafted
and put through the Convention by a combination of native Republicans
and a few Carpet- baggers, the Constitution was highly unpopular with
the more conservative elements of the State. For its time it was a progressive
and democratic instrument of government. In this respect it differed
markedly from the proposed Constitution of 1866. The Constitution of
1868 was an amalgam of provisions copied or adapted from the Declaration
of Rights of 1776, the Constitution of 1776 and its amendments, the
proposed Constitution of 1866, and the Constitutions of other states,
together with some new and original provisions. Although often amended,
a majority of the provisions of that document remained intact until
1971, and the Constitution of 1971 brought forward much of the 1868
language with little or no change.
The Constitution of 1868 incorporated the 1776 Declaration of Rights
into the Constitution as Article I and added several important guarantees.
To the people was given the power to elect all significant state executive
officers, all judges, and all county officials, as well as legislators.
All property qualifications for voting and office holding were abolished.
The plan of representation in the Senate was changed from a property
to a popular basis, and the 1835 House apportionment plan was retained.
Annual legislative sessions were restored.
The executive branch of government was strengthened by popular election
for four-year terms of office and the Governor's powers were increased
significantly.
A simple and uniform court system was established with the jurisdiction
of each court fixed in the Constitution. The distinctions between actions
at law and suits in equity were abolished.
For the first time, detailed Constitutional provision was made for
a system of taxation, and the powers of the General Assembly to levy
taxes and to borrow money were limited. Homestead and personal property
exemptions were granted. Free public schools were called for and the
maintenance of penal and charitable institutions by the State was commanded.
A uniform scheme of county and township government was prescribed.
The declared objective of the Conservative Party (under whose banner
the older native political leaders grouped themselves) was to repeal
the Constitution of 1868 at the earliest opportunity. When the Conservative
Party gained control of the General Assembly in 1870, a proposal to
call a convention of the people to revise the Constitution was submitted
by the General Assembly to the voters and rejected in 1871 by a vote
of 95,252 to 86,007.
The General Assembly thereupon resorted to the legislative initiative
for amending the Constitution. That procedure then called for legislative
approval of each proposed amendment at two successive sessions, followed
by a vote of the people on the amendment. The 1871-72 legislative session
adopted an act calling for about three dozen amendments to the Constitution
which had the general purpose of restoring to the General Assembly the
bulk of the power over local government, the courts, and the public
schools and the University that had been taken from it by the Constitution
of 1868. The 1872-73 session of the General Assembly approved for the
second time and submitted to the people only eight of those amendments,
all of which were approved by the voters in 1873 by wide margins. These
amendments restored biennial sessions of the General Assembly, transferred
control of the University of North Carolina from the State Board of
Education to the General Assembly, abolished various new state offices,
altered the double office-holding prohibition, and repealed the prohibition
against repudiation of the state debt.
The Convention of 1875
In 1875, the General Assembly called a convention of the people to
consider Constitutional revision. No confirmation of that action by
popular referendum was had, and none was then Constitutionally required.
The Convention of 1875 (the most recent in the State's history) sat
for five weeks in the fall of that year. It was a limited convention,
certain actions--for example, the reinstatement of property qualifications
for office-holding or voting--being forbidden to it.
The Convention of 1875 adopted and the voters on November 7, 1876,
approved by a vote of 120,159 to 106,~54 a set of 30 amendments affecting
36 sections of the Constitution. These amendments (which took effect
on January 1, 1877) prohibited secret political societies, moved the
legislative convening date from November of even numbered years to January
of odd- numbered years, fixed in the Constitution for the first time
the rate of legislative compensation, called for legislation establishing
a State Department of Agriculture, abandoned the simplicity and uniformity
of the 1868 court system by giving the General Assembly power to determine
the jurisdiction of all courts below the Supreme Court and to establish
such courts inferior to the Supreme Court as it might see fit, reduced
the Supreme Court from five to three members, required Superior Court
judges to rotate among all judicial districts of the State, disqualified
for voting persons guilty of certain crimes, established a one-year
residency requirement for voting, required non-discriminatory racial
segregation in the public schools, gave the General Assembly full power
to revise or abolish the form and powers of county and township governments,
and simplified the procedure for Constitutional amendment by providing
that the General Assembly might by act adopted by three-fifths of each
house at one legislative session submit an amendment to the voters of
the State (thus eliminating the former requirement of enactment by two
successive sessions of the General Assembly). The principal effect of
the amendments of 1873 and 1875 was to restore in considerable measure
the former power of the General Assembly, particularly as to the courts
and local government.
The amendments framed by the Convention of 1875 seem to have satisfied
most of the need for Constitutional change for a generation, for only
four amendments were submitted by the General Assembly to the voters
throughout the remainder of the nineteenth century. Three of them were
ratified; one failed.
In 1900 the suffrage article was revised to add the literacy test and
poll tax requirement for voting (the latter provision was repealed in
1920). A slate of ten amendments prepared by a Constitutional commission
and proposed by the General Assembly in 19;3 was rejected by the voters
in 1914. With the passage of time and amendments, the attitude towards
the Constitution of 1868 had changed from resentment to a reverence
so great that until the second third of the twentieth century, amendments
were very difficult to obtain. Between 1900 and 1938 the voters ratified
15 and rejected 20 amendments. During the first third of this century,
nevertheless, amendments were adopted lengthening the school term from
four to six months, prohibiting legislative charters to private corporations,
authorizing special Superior Court judges, further limiting the General
Assembly's powers to levy taxes and incur debt, and abolishing the poll
tax requirement for voting and reducing the residence qualification
for voters. Amendments designed to restrict the legislature's power
to enact local, private and special legislation were made partly ineffective
by judicial interpretation.
The Proposed Constitution of 1933
A significant effort at general revision of the Constitution was made
in 1931-33. A Constitutional Commission created by the General Assembly
of 1931 drafted and the General Assembly of 1933 approved a revised
Constitution. Blocked by a technicality raised in an advisory opinion
of the State Supreme Court, the proposed Constitution of 1933 never
reached the voters for approval. It would have granted the Governor
the veto power; given to a l Judicial Council composed of all the judges
of the Supreme and Superior Courts power to make all rules of practice
and procedure in the courts inferior to the Supreme Court; required
the creation of inferior courts by general laws only; removed most of
the limitations on the taxing powers of the General Assembly; required
the General Assembly to provide for the organization and powers of local
governments by general law only; established an appointive State Board
of Education with general supervision over the public school system;
and set forth an enlightened policy of state responsibility for the
maintenance of educational, charitable, and reformatory institutions
and programs.
Several provisions of the proposed Constitution of 1933 were later
incorporated into the Constitution by individual amendments, and to
a limited extent it served as a model for the work of the 1957-59 Constitutional
Commission.
Between the mid-1930's and the late 1950's, greater receptiveness to
Constitutional change resulted in amendments authorizing the classification
of property for taxation; strengthening the limitations upon public
debt; authorizing the General Assembly to enlarge the Supreme Court,
divide the State into judicial divisions, increase the number of Superior
Court judges, and create a Department of Justice under the Attorney
General; enlarging the Council of State by three members; creating a
new, appointive State Board of Education with general supervision of
the schools; permitting women to serve as jurors; transferring the Governor's
power to assign judges to the Chief Justice and his parole power to
a Board of Paroles; permitting the waiver of indictment in non-capital
cases; raising the compensation of the General Assembly and authorizing
legislative expense allowances; increasing the general purpose property
tax levy limitation and the maximum income tax rate; and authorizing
the closing of public schools on a local option basis and the payment
of educational expense grants in certain cases.
The increased legislative and public willingness to accept Constitutional
change between 1934 and 1960 resulted in 32 Constitutional amendments
being ratified by the voters while only six were rejected.
The Constitutional Commission of 1957-58
At the request of Governor Luther H. Hodges, the General Assembly of
1957 authorized the Governor to appoint a fifteen-member Constitutional
Commission to study the need for changes in the Constitution and to
make recommendations to the Governor and the 1959 General Assembly.
That Commission recommended rewriting the whole Constitution and submitting
it to the voters for approval or disapproval as a unit, the changes
suggested being too numerous to be effected by individual amendments.
The proposed Constitution drafted by the Commission represented in large
part a careful job of editorial pruning, rearrangement, clarification,
and modernization, but it also included several significant substantive
changes. The Senate would have been increased from 50 to 60 members
and the initiative (but not the sole authority) for decennial redistricting
of the Senate would have been shifted from the General Assembly to an
ex-officio committee of three legislative officers. Decennial reapportionment
of the House of Representatives would have been made a duty of the Speaker
of the House, rather than of the General Assembly as a whole. Problems
of succession to Constitutional State executive offices and of determination
of issues of officers' disability would have been either resolved in
the Constitution or their resolution assigned to the General Assembly.
The authority to classify property for taxation and to exempt property
from taxation would have been required to be exercised only by the General
Assembly and only on a uniform, statewide basis. The requirement that
the public schools Constitute a "general and uniform system" would have
been eliminated, and the Constitutional authority of the State Board
of Education reduced. Fairly extensive changes were recommended in the
judicial article of the Constitution, including the establishment of
a General Court of Justice with an Appellate Division, a Superior Court
Division, and a Local Trial Court Division. A uniform system of District
Courts and Trial Commissioners would have replaced the existing multitude
of inferior courts and justices of the peace, the creation of an intermediate
Court of Appeals would have been provided for, and uniformity of jurisdiction
of the courts within each division would have been required. Otherwise,
the General Assembly would have retained essentially its then-existing
power over the courts, their jurisdiction, and their procedures.
The General Assembly of 1959 also had before it a recommendation for
a Constitutional amendment with respect to the court system that had
originated with a Court Study Committee of the North Carolina Bar Association.
In general, the recommendations of that Committee called for more fundamental
changes in the courts than those of the Constitutional Commission. The
principal difference between the two sets of recommendations lay in
the extent of the proposed authority of the General Assembly over the
courts. The Constitutional Commission generally favored legislative
authority over the courts and proposed only moderate curtailment of
it; the Court Study Committee accepted more literally the concept of
an independent judiciary and its proposals would have minimized the
authority of the General Assembly over the courts of the State, though
structurally, its system would have been much like that of the Constitutional
Commission.
The proposed Constitution received extended attention from the General
Assembly of 1959. The Senate modified and passed the bill to submit
the proposed Constitution to the voters, but it failed to pass the House,
due chiefly to the inability of the supporters of the two divergent
approaches to court revision to reach agreement.
As had been true of the proposed Constitution of 1933, the proposed
Constitution of 1959, though not adopted as a whole, subsequently provided
the material for several amendment proposals that were submitted individually
to the voters and approved by them during the next decade.
In the General Assembly of 1961, the proponents of court reform were
successful in obtaining enactment of a Constitutional amendment, approved
by the voters in 1962, creating a unified and uniform General Court
of Justice for the State. Other amendments submitted by the same session
and approved by the voters provided for the automatic decennial reapportionment
of the State House of Representatives, clarified the provisions for
succession to elective State executive offices and disability determination,
authorized a reduction in the residence period for voters for President,
allowed increases in the compensation of elected state executive officers
during their terms, and required that the power of the General Assembly
to classify and exempt property for taxation be exercised by it alone
and only on a uniform, statewide basis.
The session of 1963 submitted two amendments: One to enlarge the rights
of married women to deal with their own property was approved by the
voters; one to enlarge the Senate from fifty to seventy members and
allocate one Representative to each county was rejected by the voters.
The General Assembly of 1965 submitted and the voters approved an amendment
authorizing the legislative creation of a Court of Appeals.
The 1967 General Assembly proposed and the voters approved amendments
authorizing the General Assembly to fix its own compensation and revising
the legislative apportionment scheme to conform to the judicially-established
requirement of representation in proportion to population in both houses.
Constitution of 1971
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. The changing attitude of the voters toward Constitutional
amendments is well illustrated by the fact that from 1869 to 1933, 21
of the 48 amendment propositions were rejected by the voters, a failure
rate of three out of seven. Between 1933 and 1968, only seven of 49 proposed
amendments were rejected by the voters, a failure rate of one out of seven.
After the amendments of the early 1960's, the pressure for Constitutional
change seemed at the time to have abated. Yet while an increasingly
frequently used amendment process had relieved many of the pressures
that otherwise would have strengthened the case for Constitutional reform,
it had not kept the Constitution current in all respects. Constitutional
amendments usually were drafted in response to particular problems experienced
or anticipated and generally they were limited in scope so as to achieve
the essential goal, while arousing minimum unnecessary opposition. Thus
amendments sometimes were not as comprehensive as they should have been
to avoid inconsistency in result. Obsolete and invalid provisions had
been allowed to remain in the Constitution to mislead the unwary reader.
Moreover, in the absence of a comprehensive reappraisal, there had been
no recent occasion to reconsider Constitutional provisions that might
be obsolescent but might not have proved so frustrating or unpopular
in their effect as to provoke curative amendments.
The Constitutional Study Commission of 1967
It was perhaps for these reasons that when Governor Dan K. Moore recommended
to the North Carolina State Bar in the fall of 1967 that it take the
lead in making a study of the need for revision of the State Constitution,
the response was prompt and affirmative. The North Carolina State Bar
and the North Carolina Bar Association joined to create the North Carolina
State Constitution Study Commission as a joint agency of the two organizations.
The 25 members of that commission (fifteen attorneys and ten laymen)
were chosen by a steering committee representative of the sponsoring
organizations. The Chairman of the Commission was former state Chief
Justice Emery B. Denny.
The State Constitution Study Commission worked throughout most of 1968.
It became clear early in the course of its proceedings that the amendments
the Commission wished to propose were too numerous to be submitted to
the voters as independent propositions. On the other hand, the Commission
did not wish to embody all of its proposed changes in a single document,
to be approved or disapproved by the voters on a single vote. The compromise
procedure developed by the Commission and approved by the General Assembly
was a blend of the two approaches. The Commission combined in a revised
text of the Constitution all of the extensive editorial changes that
it thought should be made in the Constitution, together with such substantive
changes as the Commission deemed not to be controversial or fundamental
in nature. These were embodied in the document that came to be known
as the Constitution of 1971. Those proposals for change that were deemed
to be sufficiently fundamental or potentially controversial in character
as to justify it, the Commission set out as independent amendment propositions,
to be considered by the General Assembly and by the voters of the State
on their independent merits. Thus the opposition to the latter proposals
would not be cumulated. The separate proposals framed by the Commission
were ten in number, including one extensive revision of the finance
article of the Constitution which was largely the work of the Local
Government Study Commission, a legislatively-established group then
at work on the revision of Constitutional and statutory provisions with
respect to local government. The amendments were so drafted that any
number or combination of them might be ratified by the voters and yet
produce a consistent result.
The General Assembly of 1969, to which the recommendations of the State
Constitution Study Commission were submitted, received a total of 28
proposals for Constitutional amendments. Constitutional revision was
an active subject of interest throughout the session. The proposed Constitution
of 1971, in the course of seven roll-call votes (four in the House and
three in the Senate), received only one negative vote. The independent
amendments fared variously; ultimately six were approved by the General
Assembly and submitted to the voters. These were the executive reorganization
amendment, the finance amendment, an amendment to the income tax provision
of the Constitution, a reassignment of the benefits of the escheats,
authorization for calling extra legislative sessions on the petition
of members of the General Assembly, and abolition of the literacy test
for voting. All but the last two of these amendments had been recommended
by the State Constitution Study Commission. At the election held on
November 3, 1970, the proposed Constitution of 1971 was approved by
a vote of 393,759 to 251,132. Five of the six separate amendments were
approved by the voters; the literacy test repeal was rejected.
The Constitution of 1971 took effect under its own terms on July 1,
1971 (hence its designation as the "Constitution of 1971"). So did the
executive reorganization amendment, the income tax amendment, the escheats
amendment, and the amendment with respect to extra legislative sessions,
all of which amended the Constitution of 1971 at the instant it took
effect. The finance amendment, which made extensive revisions in the
Constitution of 1971 with respect to debt and local taxation, took effect
on July 1, 1973. The two-year delay in its effective date was occasioned
by the necessity to conform state statutes with respect to local government
finance to the terms of the amendment.
The Constitution of 1971, the State Constitution Study Commission stated
in its report recommending its adoption,
- effects a general editorial revision of the Constitution .... The
- deletions, reorganizations, and improvements in the clarity and
- consistency of language will be found in the proposed Constitu-
- tion. Some of the changes are substantive, but none is calculated
- to impair any present right of the individual citizen or to bring
- about any fundamental change in the power of state and local
- government or the distribution of that power.
In the new Constitution, the old fourteen-article organization of the
Constitution was retained, but the contents of several articles--notably
Articles I, II, III, V, IX, and X--were rearranged in a more logical sequence.
Sections were shifted from one article to another to make a more logical
subject- matter arrangement. Clearly obsolete and Constitutionally invalid
matter was omitted, as were provisions essentially legislative in character.
Uniformity of expression was sought where uniformity of meaning was important.
Directness and currency of language were also sought, together with standardization
in spelling. punctuation, capitalization, and other essentially editorial
matters. Greater brevity of the Constitution as a whole was a by-product
of the revision, though not itself a primary objective.
The Declaration of Rights (Article I), which dates from 1776 with some
1868 additions. was retained with a few additions. The organization
of the article was improved and the frequently used subjunctive mood
was replaced by the imperative in order to make clear that the provisions
of that article are commands and not mere admonitions. (For example,
"All elections ought to be free" became "All elections shall be free.")
To the article were added a guarantee of freedom of speech, a guarantee
of equal protection of the laws, and a prohibition against exclusion
from jury service or other discrimination by the State on the basis
of race or religion. Since all of the rights newly expressed in the
Constitution of 1971 were already guaranteed by the United States Constitution,
their inclusion simply constituted an explicit recognition by the State
of their importance.
In the course of reorganizing and abbreviating Article III (the Executive),
the Governor's role as chief executive was brought into clear focus.
The scattered statements of the Governor's duties were collected in
one section, to which was added a brief statement of his budget powers,
formerly merely statutory in origin. No change was made in the Governor's
eligibility or term, or in the list of state executives previously elected
by the people. To the Council of State (formerly seven elected executives
with the Governor as presiding officer) were added the Governor, Lieutenant
Governor, and Attorney General as ex-officio members.
Having been entirely rewritten in 1962, the judicial article (Article
IV) was the subject of little editorial alteration and of no substantive
change. The editorial amendments to Article V, dealing with finance
and taxation, were extensive. Provisions concerning finance were transferred
to it from four other articles. The former finance provisions were expanded
in some instances to make clearer the meaning of excessively condensed
provisions. The only substantive change of note gave a wife who is the
primary wage- earner in the family the same Constitutionally guaranteed
income tax exemption now granted a husband who is the chief wage-earner;
she already had that benefit under statute.
The revision of Article VI (voting and elections) added out-of-state
and federal felonies to felonies committed against the State of North
Carolina as grounds for denial of voting and office-holding rights in
this State. The General Assembly was directed to enact general laws
governing voter registration.
The provision that has been interpreted to mean that only voters can
hold office was modified to limit its application to popularly elective
offices only; thus it is left to the legislature to determine whether
one must be a voter in order to hold an appointive office.
The Constitution of 1971 prohibits the concurrent holding of two or
more elective state offices or of a federal office and an elective state
office. It expressly prohibits the concurrent holding of any two or
more appointive offices or places of trust or profit, or of any combination
of elective and appointive offices or places of trust or profit, except
as the General Assembly may allow by general law.
The power to provide for local government remains in the legislature,
confining the Constitutional provisions on the subject to a general
description of the General Assembly's plenary authority over local government,
a declaration that any unit formed by the merger of a city and a county
should be deemed both a city and a county for Constitutional purposes,
and a section retaining the sheriff as an elective county officer.
The education article (Article IX) was rearranged to improve upon the
former hodge-podge treatment of public schools and higher education,
obsolete provisions especially those pertaining to racial matters) were
eliminated, and other changes were made to reflect current practice
in the administration and financing of schools.
The Constitutionally-mandated school term was extended from six months
(set in 1918) to a minimum of nine months (where it was fixed by statute
many years earlier). The possibly restrictive age limits on tuition-free
public schooling were removed. Units of local government to which the
General Assembly assigns a share of responsibility for financing public
education were authorized to finance from local revenues education programs,
including both public schools and technical institutes and community
colleges, without a popular vote of approval. It was made mandatory
(it was formerly permissive) that the General Assembly require school
attendance.
The Superintendent of Public Instruction was eliminated as a voting
member of the State Board of Education but retained as the Board's secretary.
He was replaced with an additional at-large appointee. A potential conflict
of authority between the Superintendent and the Board (both of which
previously had Constitutional authority to administer the public schools)
was eliminated by making the Superintendent the chief administrative
officer of the Board, which is to supervise and administer the schools.
The provisions with respect to the state and county school funds were
retained with only minor editorial modifications. Fines, penalties,
and forfeitures continue to be earmarked for the county school fund.
The former provisions dealing with The University of North Carolina
were broadened into a statement of the General Assembly's duty to maintain
a system of higher education.
The General Assembly was authorized by the changes made in Article
X (Homesteads and Exemptions) to set the amounts of the personal property
exemption and the homestead exemption (Constitutionally fixed at $500
and $1,000 respectively since 1868) at what it considers to be reasonable
levels, with the Constitutional figures being treated as minimums. The
provision protecting the rights of married women to deal with their
own property was left untouched. The protection given life insurance
taken out for the benefit of the wife and children of the insured was
broadened.
The provisions prescribing the permissible punishments for crime and
limiting the crimes punishable by death (Article XI) were left essentially
intact.
The procedures for Constitutional revision (Article XIII) were made
more explicit.
The five Constitutional amendments ratified at the same time as the
Constitution of 1971 deserve particular mention.
The Constitutional Amendments of 1970-71
By the end of the 1960's, North Carolina state government consisted
of over 200 state administrative agencies. The State Constitution Study
Commission concluded on the advice of witnesses who had tried it that
no governor could effectively oversee an administrative apparatus of
such disjointed complexity. The Commission's solution was an amendment,
patterned after the Model State Constitution and the Constitutions of
a few other states, requiring the General Assembly to reduce the number
of administrative departments to not more than 25 by 1975, and to give
the Governor authority to effect agency reorganizations and consolidations,
subject to disapproval by action of either house of the legislature
if the changes affected existing statutes.
The second separate Constitutional amendment ratified in 1970 supplemented
the existing authority of the Governor to call extra sessions of the
General Assembly with the advice of the Council of State. The amendment
provides that on written request of three-fifths of all the members
of each house, the President of the Senate and the Speaker of the House
of Representatives shall convene an extra session of the General Assembly.
Thus the legislative branch is now able to convene itself, notwithstanding
the contrary wishes of the Governor.
The most significant of the separate amendments and in some ways the
most important of the Constitutional changes ratified in 1970 was the
finance amendment. The changes it effected are especially important
in the financing of local government. The amendment became effective
on July 1, 1973. Its principal provisions are as follows:
- (1) All forms of capitation or poll tax were prohibited.
- (2) The General Assembly was authorized to enact laws empowering
- counties, cities, and towns to establish special taxing districts
- less extensive in area than the entire county or city in order
to
- finance the provision within those special districts of a higher
- level of governmental service than is available in the unit at
- large, either by supplementing existing services or providing
- services not otherwise available. That provision eliminated the
- previous necessity of creating a new, independent governmental
- unit to accomplish the same result.
- (3) For a century, the Constitution required that the levying
of taxes
- and the borrowing of money by local government be approved by
- a vote of the people of the unit, unless the money was to be
used
- for a "necessary expense." The court, not the General Assembly,
- was the final arbiter of what was a "necessary expense," and
the
- State Supreme Court took a rather restrictive view of the embrace
- of that concept. The determination of what types of public expendi-
- tures should require voter approval and what types should be
- made by a governing board on its own authority was found by
- the General Assembly to be a legislative and not a judicial
- matter. In that conviction, the finance amendment provided that
- the General Assembly, acting on a uniform, statewide basis,
- should make the final determination of whether voter approval
- must be had for the levy of property taxes or the borrowing of
- money to finance particular activities of local government.
- (4) To facilitate governmental and private cooperative endeavors,
- the state and local governmental units were authorized by the
- amendment to enter into contracts with and appropriate money
- to private entities "for the accomplishment of public purposes
- only."
- (5) The various forms of public financial obligations were more
- precisely defined than in the previous Constitution, with the
- general effect of requiring voter approval only for the issuance
of
- general obligation bonds and notes or for governmental guar-
- antees of the debts of private persons or organizations. The
- General Assembly was directed to regulate by general law (per-
- mitting classified but not local acts) the contracting of debt
by
- local governments.
- (6) The amendments retained the existing limitation that the
state
- and local governments may not, without voter approval, borrow
- more than the equivalent of two-thirds of the amount by which
- the unit's indebtedness was reduced during the last fiscal period,
- except for purposes listed in the Constitution. This list was
- lengthened to include "emergencies immediately threatening
- public health or safety."
- (7) No change was made in the provisions with respect to the
classifi-
- cation and exemption of property for purposes of property
- taxation. The limitation of .20 on the $100 valuation previously
- imposed on the general county property tax was omitted.
The fourth independent amendment also dealt with taxation. It struck out
a schedule of specified minimum exemptions from the Constitutional provision
on the state income tax, leaving those exemptions to be fixed by the General
Assembly. This change enabled the legislature to provide for the filing
of joint tax returns by husbands and wives and to adopt a "piggy- back"
state income tax to be computed on the same basis as the federal income
tax, thus relieving the taxpayer of two sets of computations. The amendment
retains the maximum tax rate at ten per cent.
The final amendment ratified in 1970 assigned the benefits of property
escheating to the State for want of an heir or other lawful claimant
to a special fund, to be available to help needy North Carolina students
attending public institutions of higher education in the State. Property
escheating prior to July 1, 1971, continues to be held by The University
of North Carolina.
The one amendment defeated by the voters in 1970 would have repealed
the state Constitutional requirement that in order to register as a
voter, one must be able to read and write the English language. That
requirement was already ineffective by virtue of federal legislation
and therefore the failure of repeal had no practical effect.
The General Assembly of 1971 submitted to the voters five state Constitutional
amendments, all of which were ratified by the voters on November 7,
1972. Those amendments set the Constitutionally-specified voting age
at 18 years, required the General Assembly to set maximum age limits
for service as justices and judges of the state courts, authorized the
General Assembly to prescribe procedures for the censure and removal
of state judges and justices, added to the Constitution a statement
of policy with regard to the conservation and the protection of natural
resources, and limited the authority of the General Assembly to incorporate
cities and towns within close proximity to existing municipalities.
The General Assembly at its 1973 session submitted and the voters in
1974 approved an amendment changing the title of the Solicitor to that
of District Attorney. The 1974 legislative session submitted an amendment
authorizing the issuance by state or county governments of revenue bonds
to finance industrial facilities, which the voters rejected.
In 1975, the General Assembly submitted two amendments authorizing
legislation to permit the issuance of revenue bonds (1) by state and
local governments to finance health care facilities and (2) by counties
to finance industrial facilities. Both received voter approval on March
23, 1976.
The Constitutional amendments of 1835 had permitted the voters to elect
a Governor for two successive two-year terms. The Constitution of 1868
extended the Governor's term to four years but prohibited the Governor
and Lieutenant Governor from serving successive four-year terms of the
same office. The 1971 Constitution retained this limitation. An amendment
to empower the voters to elect both the Governor and Lieutenant Governor
to two successive terms of the same office was submitted by the 1977
General Assembly and ratified by the voters on November 8, 1977. Four
other amendments were approved by the voters at the same time. They
required that the State operate on a balanced budget at all times, extended
to widowers (as well as to widows) the benefit of the homestead exemption,
allowed a woman (as well as a man) to insure her life for the benefit
of her spouse or children free from all claims of the insured's creditors
or of her (or his) estate, and authorized municipalities owning or operating
electric power facilities to do so jointly with other public or private
power organizations and to issue electric system revenue bonds to finance
such facilities.
Only one amendment was proposed by the General Assembly of 1979. Approved
by the voters in 1980, it required that all justices and judges of the
State courts be licensed lawyers as a condition of election or appointment
to the bench.
The 1981 session of the General Assembly sent five amendments to the
voters for decision on June 29, 1982. The two amendments ratified by
the voters authorized the General Assembly (1) to provide for the recall
of retired State Supreme Court Justices and Court of Appeals Judges
to temporary duty on either court and (2) to empower the Supreme Court
to review direct appeals from the Utilities Commission. The voters rejected
amendments (1) extending the terms of all members of the General Assembly
from two to four years; (2) authorizing the General Assembly to empower
public agencies to develop new and existing seaports and airports, and
to finance and refinance seaport, airport, and related commercial and
industrial facilities for public and private parties; and (3) authorizing
the General Assembly to empower a State agency to issue bonds to finance
facilities for private institutions of higher education.
At its 1982 session, the General Assembly submitted two amendments.
On November 2, 1982, the electorate ratified an amendment shifting the
beginning of legislative terms from the date of election to January
1 next after the election, and rejected an amendment permitting the
issuance of tax-increment bonds without voter approval.
On May 8, 1984, the voters ratified an amendment submitted by the General
Assembly of 1983 to authorize the General Assembly to create an agency
to issue revenue bonds to finance agricultural facilities. And on November
6, 1984, the voters approved an amendment requiring that the Attorney
General and all District Attorneys be licensed lawyers as a condition
of election or appointment.
An amendment to shift the elections for state legislative, executive,
and judicial officers and for county officers from even-numbered to
odd-numbered years (beginning in 1989 for legislators and 1993 for Governors
and other state executives) was submitted by the General Assembly of
1985 to the voters, who rejected it on May 6, 1986. An amendment to
revert to the pre-1977 Constitutional policy that barred the Governor
and Lieutenant Governor from election to two successive terms of the
same office was proposed by the 1985 legislative session for a popular
vote on November 4, 1986, but in the meantime the 1986 adjourned session
repealed the act proposing the amendment.
In mid-1986, the General Assembly at its adjourned session voted to
send to the voters three Constitutional amendments, all three of which
were approved on November 4, 1986. They (1) authorized legislation enabling
state and local governments to develop seaports and airports and to
participate jointly with other public agencies and with private parties
and issue revenue bonds for that purpose; (2) authorized the State to
issue tax-exempt revenue bonds to finance or refinance private college
facilities; and (3) provided that when a vacancy occurs among the eight
elected state executive officers (not including the Governor and Lieutenant
Governor) or the elected judges and justices more than 60 days (it had
been 30 days) before a general election, the vacancy must be filled
at that election.
Neither the General Assembly of 1987-88 nor the General Assembly of
1989 submitted a Constitutional amendment to the voters.
Conclusion
The people of North Carolina have treated their Constitution with conservatism
and respect. The fact that we have adopted only three Constitutions in
two centuries of existence as a state is the chief evidence of that attitude.
(Some states have adopted as many as five or ten Constitutions in a like
period.) The relative fewness of amendments, even in recent years, is
another point of contrast to many states. It reflects the fact that North
Carolina has been less disposed than have many states to write into its
state Constitution detailed provisions with respect to transitory matters
better left to legislation. The Constitution has allowed the General Assembly
wide latitude for decision on public affairs, and legislators have been
willing to accept responsibility for and act on matters within their authority
instead of passing the responsibility for difficult decisions on to the
voters in the form of Constitutional amendments.
Constitutional draftsmen have not been so convinced of their own exclusive
hold on wisdom or so doubtful of the reliability of later generations
of legislators that they found it necessary to write into the Constitution
the large amount of regulatory detail often found in state Constitutions.
Delegates to Constitutional conventions and members of the General Assembly
have acted consistently with the advice of the late John J. Parker,
Chief Judge of the United States Court of Appeals for the Fourth Circuit
(1925-58), who observed:
- The purpose of a state Constitution is two-fold: (1) to protect
the
- rights of the individual from encroachment by the State; and (2)
- to provide a framework of government for the State and its
- subdivisions. It is not the function of a Constitution to deal
with
- temporary conditions, but to lay down general principles of govern-
- ment which must be observed amid changing conditions. It
- follows, then, that a Constitution should not contain elaborate
- legislative provisions, but should lay down briefly and clearly
- fundamental principles upon which government shall proceed,
- leaving it to the people's representatives to apply these principles
- through legislation to conditions as they arise.
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