North Carolina’s Constitution of Contrasts

This essay is part of a 50-state series about the nation’s constitutions. We’ve asked an expert from each state to dive into their constitution, narrate its history, identify its quirks, and summarize its most essential components for our readers.

Like many of the original 13 colonies, North Carolina wrote its first constitution during the American Revolution in 1776 and its second during Reconstruction in 1868. Its third — and current — was ratified in 1970.

Rights Protected and Rights Restricted

The North Carolina Constitution guarantees many of the rights protected by the U.S. Constitution, such as freedom of the press, religious liberty, and the right to a jury trial. Many of these provisions first appeared in North Carolina’s 1776 constitution — written 15 years before the Bill of Rights inserted similar protections into the U.S. Constitution.

North Carolina’s constitution also protects rights the U.S. Constitution does not. Like most other states, North Carolina has embraced a broader definition of liberty than the U.S. Constitution. Instead of promising that government won’t do certain things to you, North Carolina has promised that government will do certain things for you.

For example, like every other state, North Carolina’s constitution discusses public education. It is unique in that it places a right to education in the Declaration of Rights alongside a person’s right to jury trials and religious liberty. The U.S. Constitution never mentions public education, and the U.S. Supreme Court has held that there is no implied fundamental right to public education either.

Interpreting the right to education has proven challenging. In 1997’s Leandro v. State, North Carolina’s supreme court said that “the right to the privilege of an education” guarantees students a “sound basic education.” As such, it held that an “education that does not serve the purpose of preparing students to participate and compete in the society in which they live and work is devoid of substance and is constitutionally inadequate.” The decision raised difficult questions of how much funding and what sorts of opportunities the state was obligated to provide schoolchildren and implicated separation of powers concerns by asking whether courts could compel the legislature to spend more money on education. Litigation over the scope and meaning of the right has been ongoing since 1994, and the state supreme court reconsidered some of the principles announced in Leandro in a related case as recently as 2024.

Like many state constitutions, North Carolina’s constitution declares, “We hold it to be self-evident that all persons are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty, the enjoyment of the fruits of their own labor, and the pursuit of happiness.” This likely reminds readers of the Declaration of Independence, for good reason. In writing the declaration, Thomas Jefferson drew upon a state constitutional document: George Mason’s draft Bill of Rights to Virginia’s 1776 constitution. Recently, such provisions — which appear in the constitutions of two-thirds of the states — have been invoked nationwide in several contexts, including abortion rights litigation.

Interestingly, this aspirational language appeared for the first time in North Carolina’s 1868 constitution, and not, as was the case in other states, in its 1776 constitution. That could be because the drafters of North Carolina’s 1776 constitution didn’t want to insert language undermining slavery, and many provisions of the 1776 Declaration of Rights only protected so-called freemen. By contrast, North Carolina’s 1868 constitutional convention included Black men and former slaves who believed such language would help secure racial equality.

Sometimes, the North Carolina Constitution has a less expansive definition of liberty than its federal counterpart. As an example, its Article XIV bans same-sex marriage. The prohibition is unenforceable for the moment because of Obergefell v. Hodges, the 2015 U.S. Supreme Court decision holding that the U.S. Constitution protects the right of same-sex couples to marry, and the Respect for Marriage Act, which requires those marriages be recognized in all states. But, should the Supreme Court ever overturn Obergefell, as Justice Clarence Thomas seemed to welcome in Dobbs, and Congress repeal its same-sex marriage protections, the prohibition would again be enforceable.

Structure of Separation of Powers

Like the U.S. Constitution, the North Carolina Constitution has legislative, judicial, and executive branches. But there are crucial differences. The U.S. Constitution ultimately vests executive authority in the president and allows the president to pick other executive officials, such as the vice president or (subject to Senate confirmation) cabinet officials. That is why the president and vice president have always belonged to the same party in the modern era.

However, North Carolina separately elects the governor, lieutenant governor, and attorney general. That arrangement means that, in 2024, North Carolina had a Democrat as governor (Roy Cooper) and a Republican as lieutenant governor (Mark Robinson). And while the U.S. Constitution doesn’t strip the president of power when they travel abroad, North Carolina’s constitution provides that “during the absence of the Governor from the State . . . the Lieutenant Governor shall be Acting Governor.” Then-governor Cooper explained that this reality led him to withdraw his name from consideration to be Vice President Kamala Harris’s running mate in the 2024 election. He worried that if he left North Carolina to campaign for the vice presidency, the Republican-dominated legislature could have Robinson sign bills that Cooper would have vetoed. (North Carolinians also vote for insurance commissioner, superintendent of public education, labor commissioner, and other offices that are appointed in many other states).

North Carolina’s judiciary differs from the federal one in at least three important ways. First, North Carolina’s constitution requires the legislature to set a retirement age for judges, which is currently 72. Second, North Carolina uses direct elections to select judges, though the state has vacillated between partisan and nonpartisan elections. In 2018, North Carolina’s legislature passed a statute requiring judges to be chosen by partisan election. Judicial races resemble races for the U.S. Senate or governor in other states, as candidates and PACs raise and spend millions of dollars and are the subjects of attack ads.

Finally, instead of having life tenure like federal judges do, North Carolina judges serve for eight-year terms before facing voters again. This — combined with the legislative shift to partisan elections — lead to a dramatic shift in court composition in 2023 when the North Carolina Supreme Court transitioned from a Democratic to a Republican majority. The new Republican majority then famously overruled two decisions from a year earlier, one forbidding partisan gerrymandering and the other striking down a voter ID law as racially discriminatory. Developments like these may place the principle of stare decisis — that courts respect prior decisions — on a shakier foundation than it is at the federal level, though the U.S. Supreme Court has also reversed several longstanding precedents recently.

North Carolina’s legislature is the most powerful branch of state government and has fewer checks on it than legislatures in other states. In addition to typical powers like making the state budget, it is the sole gatekeeper of constitutional change. The only way to amend the state constitution is for 60 percent of both houses of the legislature to propose one and for voters to ratify it. The only way to write a new constitution is for two-thirds of both houses to call a constitutional convention. Fourteen other states automatically allow voters to vote on the question of whether to call a constitutional convention at periodic intervals, say every 20 years. Eighteen states allow voters to petition to place a constitutional amendment on the ballot themselves. Twenty-one states provide a similar process for citizens to make statutes.

Meanwhile, North Carolina is an outlier in not imposing single subject and clear title requirements on legislation. More than 40 state constitutions have single-subject requirements, and at least 40 have clear title requirements. New Jersey’s constitution provides an example of such a provision, requiring that “to avoid improper influences which may result from intermixing in one and the same act such things as have no proper relation to each other, every law shall embrace but one object, and that shall be expressed in the title.” North Carolina’s legislature may therefore pass legislation that other states’ courts would likely invalidate.

Finally — as a result of that 2023 decision overruling its prior precedent forbidding partisan gerrymandering — the state legislature has a free hand to draw maps that favor one party. In the decision’s aftermath, Princeton University’s Gerrymandering Project graded the maps used to elect state senators as an “F” for partisan fairness. This stands in contrast to many other states where courts have chosen to police partisan gerrymandering.

Race — and Racism — in the State Constitution

America’s story around race is fraught with contradictions, and North Carolina’s is no different. The Declaration of Independence said that “all men are created equal” at the same time as human beings were bought and sold. Moments of racial progress like Reconstruction — when formerly enslaved men participated actively in the nation’s political life — have been met by white supremacist backlashes. North Carolina’s constitution is perfect evidence of these tensions. On one hand, the constitution bans slavery and promises that “no person shall be denied the equal protection of the laws; nor shall any person be subjected to discrimination by the State because of race, color, religion, or national origin.”

On the other hand, the North Carolina Constitution still imposes a literacy test, though the provision hasn’t been enforced in decades. The literacy test was part of a long war to end Black participation in North Carolina politics. The term war may seem like hyperbole, but it is not. It began with efforts to scare whites into opposing the 1868 constitution by warning them that its guarantees of racial equality would lead to Black men raping white women. It progressed through disenfranchising felons with the intent of disproportionately affecting Black men — and thus stripping them of their right to vote — without violating the U.S. Constitution’s 15th Amendment. It ran through Wilmington’s streets in 1898 when a mob led by Alfred Waddell, a former Congressman, slaughtered innocent Black people before forcing the city’s elected leadership, which had depended on Black voters, to resign at gunpoint. This war on Black rights resulted in an amendment to the state constitution adding a literacy test.

How could a constitution reflect both a desire for racial equality and white supremacy? The answer is that the drafters of North Carolina’s 1970 constitution refused to definitively resolve the conflict between competing constitutional visions. One of those visions — stretching back to 1776 — tolerated slavery and refused to declare the equality of all human beings. The second — dating from 1868 — rejected slavery, explicitly embraced human equality for the first time, and allowed men of all racial backgrounds to vote and hold office. These visions are irreconcilable. And yet both are reflected in the text of North Carolina’s current constitution. In that way, North Carolina’s constitution testifies to America’s racial history in a way remarkably few other documents do.

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The North Carolina Constitution contains historic curiosities and deep contrasts. Through only several decades old, it entirely avoided the 20th-century trend of giving residents the ability to use the initiative, referendum, and recall. It reflects the ideal that all men are equal while promoting white supremacy with its literacy test. Overall, North Carolina’s constitution is a distinctly 19th and even 18th-century document despite being adopted in the 20th century.

Marcus Gadson is an assistant professor of law at Campbell University, where he teaches state constitutional law. He is the author of the forthcoming book Sedition: How America’s Constitutional Order Emerged From Violent Crisis, which tells the story of constitutional crisis at the state level and how it’s affecting you today.

Suggested Citation: Marcus Gadson, North Carolina’s Constitution of Contrasts, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Apr. 9, 2025), https://statecourtreport.org/our-work/analysis-opinion/north-carolinas-constitution-contrasts