The Strange Legal Standard Eroding Civil Rights In North Carolina

In criminal trials, the North Carolina Constitution provides a right to unanimous verdicts by no more and no less than 12 jurors. Yet the state supreme court recently upheld a law allowing trial judges to remove a juror and seat an alternate even after deliberations have already started — effectively allowing someone outside the jury to participate in and potentially influence deliberations. To justify this conclusion, the court used an odd and highly criticized rule that has started to appear regularly in its opinions: requiring claimants to prove that statutes are “unconstitutional beyond a reasonable doubt.”

State v. Chambers is the most recent in a string of cases invoking that rule since Republican justices took control of the court in 2023 and quickly began to roll back civil rights under the state constitution. They even reversed the court’s rulings from just a few months prior, including a December 2022 decision in which the previous court struck down a discriminatory voter ID law.

The rule that courts have final say on what the law means and the power to declare laws unconstitutional, known as “judicial review,” has existed in North Carolina even longer than in the federal courts. The North Carolina Supreme Court first struck down unconstitutional legislation in 1787 — 16 years before the U.S. Supreme Court announced in Marbury v. Madison that it “is emphatically the province and duty of the judicial department to say what the law is.” Saying “what the law is,” including the scope of constitutional rights, presents a legal question. “Beyond a reasonable doubt,” on the other hand, is famously the law’s most exacting evidentiary standard, used to determine whether certain facts are sufficiently proven. The distinction plays out every day in criminal trials, where the labor is split between juries that determine whether prosecutors have proven facts “beyond a reasonable doubt” and trial judges who provide the law via jury instructions. 

It is confusing, then, to suggest that courts will strike down a law only if they are convinced “beyond a reasonable doubt” that it is unconstitutional. It uses a fact-finding test for a law-interpreting task and implies that laws are unconstitutional only when no reasonable judge could disagree — a proposition that would dismiss centuries of dissenting opinions as the work of irrational morons. Yet that “strange rhetorical formulation,” as law professor Hugh Spitzer calls it, appears repeatedly in North Carolina Supreme Court opinions from the last two years.

The test appeared in the cases that rescinded voting rights and rules protecting fair elections, one upholding a photo ID requirement for voting in person and another permitting legislative and congressional districts explicitly designed to benefit Republicans. It’s there framing a ruling that upheld a law banning people on felony probation or parole from voting, even after a trial court found that the law was originally intended to disenfranchise Black voters and continues to create “extreme” racial disparities. In criminal cases, the court invoked the standard to uphold consecutive life without parole sentences for a 17 year old, in addition to last month’s ruling on substitute jurors. Together, these rulings reflect an anti-equality retrenchment from cases decided by the previous liberal majority, and in which no such “beyond a reasonable doubt” standard appeared. 

Ideological differences aside, is there an argument that adding this requirement is useful, or at least makes sense? Spitzer does not think so. His 2023 article “Reasoning v. Rhetoric: The Strange Case of ‘Unconstitutional Beyond a Reasonable Doubt’” examines the origins of this standard and how courts have used it over the last quarter century. He argues that, rather than helping judges decide cases and guiding lawyers who argue them, this framing merely “provide[s] institutional cover when an appellate court resolves a controversial case.”

“In most states,” Spitzer writes, “‘unconstitutional beyond a reasonable doubt’ has become a jingle that is dropped into cases when convenient . . . and then ignored when it is not convenient.” He concludes “that the idea should be eliminated from judicial discourse,” in part because “quoting an evidentiary standard of proof and posturing it as a rule of decision can mislead both lawyers and the public, or, still worse, appear disingenuous and reduce respect for the judiciary.”

Speaking at a 2023 symposium organized by State Court Report and the NYU Law Review, North Carolina Justice Anita Earls — now one of two Democrats on the court — expressed bewilderment at her majority’s new standard. “Either the statute is consistent with the constitution or not,” she said. “This notion that you have to somehow establish that beyond a reasonable doubt makes no sense to me.”

Some state courts have agreed. In 2007, Montana Supreme Court Justice W. William Leaphart wrote in a concurrence that “beyond a reasonable doubt” is an “absurd standard of decision for a question of law.” In 2014, the Arizona Supreme Court officially rejected this standard “for making constitutional determinations,” noting that “assessing the constitutionality of a law fundamentally differs from determining the existence of historical facts.”

I’d take the argument a step further. The “beyond a reasonable doubt” standard is not simply confusing, it dilutes fundamental rights, adding another hurdle that civil rights plaintiffs must clear. Judges already have doctrinal tests to determine whether state action (including legislative action) violates certain constitutional rights. Asked if a criminal sentence violates the Eighth Amendment’s right against “cruel and unusual” punishment, for example, courts will typically refer to either the two-prong “categorical framework” or the three-part “gross disproportionality” test. Asked if a statute violates equal protection, courts apply different tests depending on the nature of the claim. A law that discriminates based on race must pass “strict scrutiny,” while gender discrimination need only pass “intermediate scrutiny.” Pick any other constitutional right — the rights to free speech, religious exercise, due process, and so on — and you’ll find something similar: a broad principle reduced to a nuts-and-bolts, multi-factor test used to determine if that right has been violated.

Creating these tests is Marbury v. Madison in action — it is saying what the law is — and they are themselves, of course, heavily contested. But the point here is that courts already have rules of decision when faced with a constitutional claim. With a meta burden of proof, North Carolina adds an extra layer, suggesting that state action must not only fail the applicable doctrinal test before it is struck down, it must do so beyond a reasonable doubt. 

In his empirical analysis, Spitzer points out that the constitutional “beyond a reasonable doubt” standard is not reserved for conservative courts; the Washington Supreme Court, one of the nation’s most progressive, has used it over 40 times since 2000. And the standard dates back to late-19th century progressivism, animated by concerns that pro-business courts were too quick to overturn labor and other regulations. Yet that does not change how North Carolina’s supreme court has weaponized an inherently amorphous and unworkable rule to water down civil rights and reverse the state’s hard-fought progress toward racial justice. In their dissenting opinions — and there are sure to be more of them — the court’s liberal justices should point this out, citing Spitzer and the late North Carolina Justice Harry Martin, who praised the state constitution as a “beacon” of civil rights.

“When faced with an opportunity to provide its people with increased protection through expansive construction of state constitutional liberties,” Martin wrote, “a state court should seize the chance.” 

Kyle C. Barry is director of the State Law Research Initiative and a freelance writer. 

Suggested Citation: Kyle C. Barry, The Strange Legal Standard Eroding Civil Rights In North Carolina, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Jun. 4, 2025), https://statecourtreport.org/our-work/analysis-opinion/strange-legal-standard-eroding-civil-rights-north-carolina