The Constitutional Study Commission of 1967

by John L. Sanders, Director of the Institute of Government, University of North Carolina at Chapel Hill.

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 Constitution. 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.