North Carolina: Waiting Until Rights Are Right
[This is the sixth post in a series about declarations of rights that the newly independent states adopted in 1776. You can read the first post here, the second post here, the third post here, the fourth post here, and the fifth post here. We are running the posts in the lead up to a conference called “The Other Declarations of 1776.” Co-sponsored with our friends at the Liberty & Law Center at George Mason University’s Antonin Scalia Law School, it is an all-day conference (with a free lunch!) in Arlington, Virginia on April 10, 2026. Members of the public—including you!—are very much invited to attend in person. See the details, and register, here!]
After spreading northward from Virginia to Pennsylvania, back down to Maryland, and then over to Delaware, the last state declaration of rights in the birth year of the United States took the rights-declaring exercise further to the south. Running just a bit behind Maryland’s convention—which started in August but didn’t finish until November 11, 1776—North Carolina’s equivalent completed its labors a bit over a month later, with its Declaration of Rights enacted on November 17 and its Constitution a day after that.
Unlike in the previous states, though, North Carolina’s constitution-makers had had a bit of a trial run earlier in the year. Waiting a few months allowed them to learn from the lessons of the states to their north. Not just regarding the content of their declarations but whether to have a declaration of rights in the first place.
A Tar Heel trial run
Like the other states, North Carolina was in a bit of literal “anarchy” at the beginning of the Revolution. The royal governor, Josiah Martin, fled his residence in April 1775 and ended up hiding out on a ship, the HMS Cruizer. Meanwhile, revolutionaries in the state were holding serial “congresses” where delegates would get together and try and make civil government function. One of these met at Halifax in April 1776. There they adopted the pivotal “Halifax Resolves,” authorizing the colony’s delegation in the Second Continental Congress to move toward full independence. Then, in keeping with the Resolves, they tried to hammer out a draft “constitution.”
After much squabbling, on May 11 the congress adopted a series of resolutions that it called a “civil temporary Constitution.” Really it was simply the delegation of a series of powers to a “Committee of Safety for this Colony” that would govern North Carolina until the next congress was scheduled to meet in November. Many of these powers related to the war effort but it was hardly a full-blown government as it explicitly lacked the power to tax and other core functions. Even if these resolutions could be called a “constitution,” they were even more temporary than the earlier examples in New Hampshire and South Carolina. And there was no declaration of rights.
A few declarations later
As we’ve chronicled in the previous posts, much happened in the intervening months. Indeed, the whole understanding of what a “constitution” was had shifted. When the next North Carolina congress came together it took up the job punted from the previous spring but many members likely saw their job differently from when last were together. On November 13 the congress appointed a committee that would draft both a constitution and a declaration of rights, something not even on the table before. In just those few months what it meant when “writing a constitution” had evolved.
With all that work having been done to their north, the North Carolinian delegates had plenty to inspire them in drafting their declaration. John Orth, a professor at the University of North Carolina and an expert on the North Carolina Constitution, helpfully compared the 1776 Declaration of Rights to provisions from states like Virginia and Pennsylvania in the appendix to this article. There you can see, for example, that the North Carolinians took a “law of the land” clause from Maryland and a mandate that elections of legislators “ought to be free” from Virginia. Intriguingly for current debates, they also took a “right to bear Arms for the Defense of the State” from Pennsylvania but omitted three words that had been in Pennsylvania’s version: “defense of themselves and the state.”
One feature that seems to be unique in this declaration is after many provisions that are of a kind with the previous examples from further north, there is a quite different final provision, Section 25. It particularly defines what the borders of the state should be but also calls on future officers to negotiate with neighboring polities to make these borders permanent with a view to future “governments” existing to the west and also not prejudicing “any nation or nations of Indians, from enjoying such hunting-grounds as may have been, or hereafter shall be, secured to them”. This seemingly out-of-place provision is a reminder how fluid and undefined life in 1776 America was and how while fundamental liberties were important to these statesmen, politics and foreign relations—even beyond the current war—were too.
As in other states, the Declaration and Constitution, though technically separate, were part of the same legal document, with the “Constitution” side stating that “the Declaration of Rights is hereby declared to be part of the Constitution of this State, and ought never to be violated, on any pretense whatsoever.”
The last was longest
Thus, just a week before Christmas, the congress completed its efforts, giving North Carolinians their first “permanent” constitution and unambiguously their first declaration of rights. Perhaps it is just a coincidence but it seems waiting as long in the year as the state did allowed for its constitution to endure. With amendments, the constitution—and declaration of rights—lasted beyond any other state’s constitution adopted 1776. The next North Carolina Constitution would be the Reconstruction Constitution of 1868.
That concludes posts on this blog about declarations of rights in 1776. But it doesn’t conclude this series. That’s because although we’re done with “declarations of rights” in that year there’s a bit more to the story. What about constitutional rights that weren’t in “declarations”? And what happened after 1776? We’ll address those questions in the next, and last, post.
Anthony Sanders is the Director of the Center for Judicial Engagement at the Institute for Justice.