Let me start with a distinction.
I detest a wide array of the choices made by North Carolina’s governor and General Assembly over the past five years. I think it despicable, for example, to have refused crucial health care to low-income Tar Heels to show disdain for a president. I believe it loathsome to force unemployed workers into destitution to subsidize wealthy donors and businesses. I’m confident kicking people off food stamps to fund tax cuts for millionaires deserves unrelenting contempt. I could go on.
But I make no claim that these choices, no matter how villainous, are beyond the understood and accepted authorities of an American state government. We opt, broadly speaking, for majority rule. The preferences of the bulk of the people, enacted through representatives, prevail. They are not necessarily invalid even if they are vicious or vile. An action of government isn’t rendered impermissible just because it’s wrong.
Still, of course, there are acts, according to our governing framework, that are seen as beyond the legitimate authorities of a state. In order to make “consent of the governed” operational, to open securely channels of political participation, and to assure the full dignity and opportunity of the commonwealth’s membership, we prohibit government from distorting or debilitating the effective functioning of democracy. Majority rule demands a policing of access, a constraint on the “ins” ability to unfairly exclude the “outs” – lest the commitment to self-governance itself be defeated.
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Many of these foundational restraints are written directly into the text of the Constitution. It’s impermissible, for example, to deny someone’s right to vote because of her race, or her sex, or because she’s only 19, or because she can’t pay a poll tax. Americans are assured rights to speak, to publish, to assemble and to petition their governments for redress of grievances. We’re familiar with the drill.
Other constraints, though less overtly textual, are thought to arise from the structure of government itself – the celebrated independence of the judiciary, the enforced demand for a workable separation of powers, the residual sovereignty necessary for required leeway in the states.
And some limitations, at various governing levels, have been developed through traditions and practices meant to check and balance worrisome distortions of power – our predilections for municipal and county prerogative, our customs of academic and religious independence, our deference to institutions of civil society, and the like.
We have believed these safeguards and structures necessary for the implementation of American liberty. We’ve maintained those requisites knowing that, on occasion, they make the animation of government less smooth and efficient than it might be otherwise. We recognize higher values than speed and momentary political dominance. We’d rather check government than forfeit freedom.
I worry these ancient constraining lessons are now being lost in North Carolina.
The Republican General Assembly has not been content to merely enact its substantive policy choices to stamp an imprint on life in North Carolina. It has moved repeatedly to reject the pillars and infrastructure of democratic governance.
The legislature has, notably and officially, deployed its redistricting powers to distort both state and federal elections in favor of incumbent Republicans. It has forced identification and polling practices, it admits, designed to put a thumb on the electoral scale in its favor. It has effectively charged election boards to act like party functionaries.
It has repeatedly attacked the independence of the courts – shielding Republican justices from the electoral process, opening the door to purchased judicial elections, and narrowing the processes of constitutional review to protect its own statutes from invalidation.
It has moved to overturn municipal elections that don’t yield its preferred results. It has stripped local governments of traditional prerogatives, even before the path-breaking usurpations of HB2. It has regularly forced campus leaders in Chapel Hill to cower like frightened children.
Although it should stun us, we are now unsurprised that a governor would seemingly conceive it possible (even if temporarily) to stay in office despite losing his race, or that a supreme court election would be threatened by a floated court-packing plan. All gives way before bare, unbridled, radical and arrogant assertions of power.
Phil Berger, Tim Moore and Pat McCrory have sought not only to make North Carolina the most right-wing government in America, they also want it to be the most autocratic. Arthur Schlesinger wrote, decades ago, that “a totalitarian regime crushes all autonomous institutions in its drive” to wield authority. Hail the new totalitarians.
I have an odd affection for Huey Long. He did much for the poor and marginalized of Louisiana (and, to be sure, for himself). He can’t be seen as an American hero, though, because he laid waste to the democratic processes of his state to do it. Long would have detested the “lickspittle” goals of our General Assembly. But he would have strongly admired its style.
Gene Nichol is Boyd Tinsley distinguished professor of law at UNC-Chapel Hill.