If you asked a bunch of random North Carolinians what the biggest problem in the state is you would certainly get lots of different and unrelated answers.
But I think most conservatives in this state would agree that judicial activism is taking a tremendous toll on liberty and self-government, and not just here, but across the nation. This is why so often we hear candidates for president on the right declaring at rallies that they will appoint judges who will interpret the law as written and not “legislate from the bench.” After all, what is the point of winning elections and trying to make reforms if the will of the voters is constantly muted?
Even more than other states it seems, North Carolina is swept up by a judicial activism at the state and federal level.
A myriad of laws originating in the legislature whether it be on issues like Voter ID, redistricting, or abortion restrictions, has been struck down by the courts. Almost everything that is legislated is litigated. Gov. Roy Cooper is well noted for his “see you in court” mentality when he disagrees with legislation. Progressive liberals say this is the fault of the legislature and the left is emboldened more and more to legislate through the courts.
At the Intercollegiate Studies Institute, Allen Mendenhall has published an important piece titled “How Much Legislative Power Do Judges Really Have?”
It’s not a clear-cut answer even on the political right but I think the piece is helpful for understanding the importance of the legislature to govern and when its power becomes eroded by the courts that inevitably threatens self-government. Mendenhall notes:
“This legislative is not only the supreme power of the commonwealth,” [John] Locke intoned, “but sacred and unalterable in the hands where the community have once placed it; nor can any edict of anybody else, in what form soever conceived or by what power soever backed, have the force and obligation of a law which has not its sanction from that legislative which the public has chosen and appointed.”
Because the legislature, in his view, embodied “the consent of the society over whom nobody can have a power to make laws.” Locke’s paradigm holds, accordingly, that the legislature speaks for the people, from whom legitimate government obtains its limited authority; legislation reflects a general consensus among the people about controlling norms, beliefs, and values. The judiciary is curiously absent from this paradigm.
It’s clear to me that more judicial restraint is needed when it comes to intervening in the legislative process in North Carolina, regardless of what party holds power. Thomas Jefferson was fond of saying that liberty ultimately rests with the people, which definitely includes its legislative representatives that are closest to those whom they govern. This is an essential issue going forward to maintain a proper balance of the separation of powers and to also make sure more power is not usurped from the voter.