Unconstitutional, bad not synonyms

Listen to this state’s only two-term Republican governor, and you’ll hear that GOP legislators are “trying to put unconstitutional things in the state constitution to make them not unconstitutional anymore.”

Moreover, it’s an act of “mischievous brilliance.” At least that’s how the Charlotte Observer describes its recent conversation with former Gov. Jim Martin. His comments focused on two proposed constitutional amendments on the November ballot in North Carolina.

Martin’s words prompted two reactions from this observer. First, the former governor appears to want his audience to make the mistake of conflating “constitutional” with “good” and “unconstitutional” with “bad.”

Second, once one takes away the unflattering characterization, Martin’s words basically describe the standard constitutional amendment process. There’s nothing “brilliant” about it. Lawmakers have taken the steps they need to take to ask voters to change North Carolina’s governing document.

Before delving into both points, let’s cut Martin some slack. When he uses the word “mischievous,” one suspects that he’s referring to the way lawmakers initially described the constitutional changes they seek. On that point, he has a reasonable case.

Both amendments would shift power away from the governor and toward the General Assembly. One would give lawmakers the sole authority to appoint members to a reconstituted state elections and ethics board. The other would give lawmakers the lion’s share of power in appointing people to fill judicial vacancies.

Two members of a three-judge panel agreed with Martin — and all other living former N.C. governors — that the original ballot language of those amendments would mislead voters. The judges ordered the amendments stricken from the ballot. But they offered the General Assembly a chance to rework the ballot language to reflect the proposed changes more accurately.

Lawmakers complied. Their new versions of both amendments survived the three-judge panel’s scrutiny. And the state Supreme Court, with its 4-3 partisan split favoring Democrats, refused to step in and rule against the GOP legislative majority.

So whatever mischief might have been involved in crafting the earliest versions of the amendments appears to have been resolved through the legal process. Now voters can decide whether they agree with Martin that the circumstances surrounding the amendments’ development should lead to a “no” vote.

Returning to the first key point: Martin raises concerns about “unconstitutional things.” He implies that those “things” are bad.

It’s an effective rhetorical tool. When people hear the word “unconstitutional,” they tend to think of laws or acts that violate a clear constitutional protection: attacks on free speech, efforts to stifle gun rights, violations of due-process rights in criminal cases.

But the word “unconstitutional” is not synonymous with “bad.” Nor is something that is “constitutional” necessarily good.

To explain why, let’s turn to another issue N.C. voters will address this fall: the constitutional cap on income tax rates. The state’s flat personal income tax rate stands now at 5.499 percent. It falls to 5.25 percent in 2019. The Republican-led General Assembly has cut the rate multiple times since 2013.

Under the current state constitution, a future General Assembly could reverse course and raise the rate to as much as 10 percent. Critics could point to plenty of peer-reviewed academic research suggesting that a tax hike that large — 90 percent — would be terribly bad. But they could not call it unconstitutional. The current state constitution caps the income tax rate at 10 percent.

An amendment on the November ballot would lower the cap to 7 percent. If approved, a future General Assembly still could raise the rate by 33 percent to reach the new cap. But the rate could climb no higher. Those future lawmakers might argue that a 10 percent tax rate would be good policy. But it would be unconstitutional.

One suspects a large majority of today’s voters believe a 10 percent income tax rate would be bad. They’ll have their chance to make it unconstitutional this fall.

On the flip side, some good ideas might be “unconstitutional” today. But a majority of voters can decide that it makes sense to “make them not unconstitutional anymore.” This is why Martin’s warning about “unconstitutional things” getting inserted into the state constitution ought not to raise much concern.

The terms “constitutional” and “unconstitutional” carry no moral value. Instead they describe whether an act or law fits within the structure of government established by the people.

This leads to the second key point listed above. Strip the words “constitutional” and “unconstitutional” of any association with “good” and “bad,” and Martin’s characterization basically describes the process voters face any time they contemplate a state constitutional amendment.

Lawmakers “trying to put unconstitutional things in the state constitution to make them not unconstitutional anymore” is an unflattering way of saying that lawmakers are trying to change the constitution to permit or prevent something tomorrow that it doesn’t permit or prevent today.

Well, yes. That’s what state constitutional amendments do.

Martin knows this. He’s a brilliant man. He’s a canny politician. And he doesn’t like the idea of state lawmakers using constitutional amendments to shift power away from North Carolina’s governor and into their own hands.

He also knows those lawmakers have not concocted some nefarious scheme. They are asking voters to change the constitution. It’s a process lawmakers have employed many times before.

Voters should keep these facts in mind as they consider whether to make the proposals embodied in this year’s amendments “not unconstitutional anymore.”

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Mitch Kokai is senior political analyst for the John Locke Foundation.

Mitch Kokai is senior political analyst for the John Locke Foundation.