What Is a Sovereign Act in North Carolina?

How “the people” transfer their sovereign power to their government is not an exact science. The North Carolina Supreme Court recently issued an opinion that, coupled with the dissent, makes this inexactness all too unclear.

Many eminent thinkers have pondered the nature of sovereignty—especially the “popular sovereignty” we have in a democratic republic—for centuries. Just here on the blog we’ve looked at the issue in state supreme court cases. To make a very short summary of a very long story, in the American context the baseline assumption is that individuals have given up some of their rights to government in some kind of “social contract.” And they do this through adopting constitutions, whether it be their own state constitution or the U.S. Constitution. Their elected representatives then pass laws according to those constitutions, but sometimes can overreach. When they overreach those laws or actions are “unconstitutional” because they offend “the people’s” sovereign command. The ordinary adoption of statutes or the actions of executive officials are not “sovereign” but simply the work of delegates of “the people.” The people only express their “sovereignty” (in the way we mean it here) when they enact, alter or abolish their constitutions.

That’s complicated enough, but you can see the distinction: Constitution = sovereign power; other law = delegated, and not sovereign, power. But how is the exercise of “sovereign power” actually effectuated? That is, how do “the people” amend or replace their constitutions? Well, constitutions generally have a straight-forward formula for how that happens. The U.S. Constitution has its famously hard process of two-thirds of both houses plus three-quarters of all state legislatures. Most states are much easier, but even they have a process that’s at least a bit harder than run-of-the-mill legislation. If that process is followed, though, that change of a state’s constitution is understood to be a “sovereign act” of “the people.”

What if, though, the process isn’t exactly on the up-and-up? Then, oh boy, things are messy. That was the situation in North Carolina. In NAACP v. Moore the North Carolina Supreme Court was faced with the following scenario. The state legislature had redrawn legislative district lines after the 2010 census. Those lines were challenged, and the case went all the way to the U.S. Supreme Court, which found they were unconstitutional under the federal Equal Protection Clause. However, after the ruling but before the lines were redrawn, the legislature approved state constitutional amendments to go to the voters. According to the North Carolina Constitution, it can be amended if three fifths of each house of the legislature approve a proposed amendment and then it is ratified by a majority of the voters in an election. And a couple of the amendments that this “malapportioned” legislature approved were then ratified.

Now under the theory I outlined above, the sending of the amendments to the voters by the requisite three-fifths majority and their subsequent passage constitutes a “sovereign” choice by “the people.” The plaintiffs in the case at the North Carolina Supreme Court, however, argued that since the legislature that voted for them was unconstitutionally constituted (the number of members from “malapportioned” districts exceeded the number of votes needed to satisfy the three-fifths requirement) then the amendments were themselves unconstitutional. Kind of like if a bill were passed without a required majority in a house—it’s just not a law.

But, you might ask, what about all the ordinary laws that the same legislature passed? Are they void too? The court ruled that no, they are not under something called the “de facto officer doctrine.” That doctrine essentially allows the law to recognize the acts taken by officials who were clothed with authority but actually it turns out shouldn’t have possessed it. This is distinct from a “usurper” who never should have been recognized to have authority in the first place. The reason for the doctrine is that otherwise “chaos” would result when officials are found to have been installed unconstitutionally, nullifying all official acts they have taken. (“Chaos” appears 14 times in the majority opinion.)

Where the court has its work cut out for it is why the de facto officer doctrine should apply to ordinary legislation but not constitutional amendments. Indeed, the court doesn’t even say that all constitutional amendments would be void, just that those that target the interests of those whose interests were targeted by the malapportionment in the first place (here, racial minorities) are highly suspect.

The dissent argues that these distinctions are unprincipled and unsupported. Therefore, it claims, this is simply a political question. It cites many older reapportionment cases from North Carolina and elsewhere that did not go nearly as far at the court does here.

Without taking sides on this debate, I think it’s instructive to go back to the sovereignty issues I raised above. What the court doesn’t really get to examining is whether the legislators who were in unconstitutionally drawn districts were acting according to the “sovereign” wishes of “the people.” That is not necessarily the same thing as whether their elections satisfied the U.S. Constitution. Further, the court says this case is unlike many others because the legislators voted for the proposed amendments after they knew the courts had ruled their districts were unconstitutional. But does that really make it different from when unconstitutionally malapportioned legislatures have adopted amendments, and ordinary legislation, many other times? For example, under modern one-person-one-vote jurisprudence almost all legislatures before the 1960s were unconstitutional. Does that mean all their constitutional-making actions were not “sovereign” acts? Democracy is often a mist.

These are questions that will continue to be asked, and answered unsatisfactorily, in the years to come. In the end the delegation of sovereign authority to a state’s government is a legal fiction, of course. Individuals have rights and governments sometimes protect them and sometimes don’t. We view that relationship as a “social contract” in order to better manage our affairs and better rein in the awesome powers that government possesses. But when we start to make distinctions that create even higher levels of legal fictions it’s worth taking a step back and looking at first principles.

Anthony Sanders is the Director of the Center for Judicial Engagement at the Institute for Justice.