Sharing NC’s fruits with the rest of the nation

Published May 16, 2024

By Mitch Kokai

North Carolina enjoys a one-of-a-kind state constitutional provision protecting economic liberty.

It attracted attention recently from a libertarian thinker with a national audience. It could generate even more interest in the years ahead, as justices sitting on the state’s highest court explore its meaning.

The provision sits near the top of the state constitution in Section 1 of Article I, the Declaration of Rights. Mirroring the Declaration of Independence, the section notes the “self-evident” fact that “all persons are created equal.” Among their “inalienable” rights are life, liberty, and the pursuit of happiness.

North Carolinians also enjoy the right to “the enjoyment of the fruits of their own labor.”

Those words prompted recent publicity from Walter Olson, senior fellow at the libertarian Cato Institute’s Robert A. Levy Center for Constitutional Studies.

“Libertarian thinkers have long proposed that courts should do more to protect the right to earn a living, more precisely articulated as the right to pursue the occupation of one’s choice as against government‐​granted monopolies and arbitrary curbs on entry to a chosen trade,” Olson wrote for Cato on May 1.

Olson explained that the right to earn a living dates back as far as the “Elizabethan era” in English common law. It was “seen by both proponents and opponents as part of the set of rights protected by the Fourteenth Amendment.”

Federal courts have failed to give this fundamental right the protection it deserves from government intrusion, Olson explained. But that’s not the end of the story.

“You might be surprised to learn that North Carolina, unique among the states, includes in its constitution a clause that covers much of this ground,” Olson wrote, alluding to the “fruits of their own labor” clause.

Amid “hesitations and false starts,” Olson noted reliance on the “fruits” clause in the 20th century to strike down arbitrary licensing restrictions on photographers and dry cleaners. He highlighted present-day cases in North Carolina involving “fruits of their own labor” claims, including both a legal dispute over Gov. Roy Cooper’s COVID-19 shutdown of private bars and a New Bern eye surgeon’s challenge of state certificate-of-need restrictions.

“Given North Carolina’s real‐​world experience with the clause, which some might see as inspiring and hardly anyone seems to regard as disastrous, it wouldn’t surprise me if there developed moves to add similar language by amendment to other states’ constitutions,” Olson concluded.

He might be right. Yet other states’ interest in “fruits of their own labor” protections could depend on future action at the North Carolina Supreme Court.

That court has heard arguments but has not yet ruled on the New Bern CON challenge. Justices have not yet taken up the bar shutdown case. Either legal dispute could set an important precedent for future “fruits” cases.

At least some members of North Carolina’s high court look forward to examining the contours of “fruits” claims. Justice Phil Berger Jr. discussed the issue during a May 2023 presentationin Cary for the Bastiat Society.

“You could easily gloss over this phrase and think, ‘Well, my goodness. They took this right from the Declaration of Independence,’” Berger said. “But in North Carolina, the people have enshrined in their constitution a seemingly innocuous clause that packs quite a bit of punch.”

“The ‘fruits of your own labor’ clause is not a relic of the old days, but rather it’s a strong safeguard that’s available to North Carolinians which serves to protect property interests and economic liberty,” Berger added.

The clause remains “actionable,” meaning plaintiffs can use it as the basis for lawsuits. It “has been and will continue to be a valuable tool that offers robust protections for your rights here in this state,” Berger said.

Though the “fruits” clause dates back to the 1860s, courts still have work to do to define its ultimate impact.

Future cases could answer important questions, Berger said during the 2023 speech. “If you have a right that’s enshrined in the constitution, then how does a statute interact with that? Where is the friction?” Berger asked. “What level of scrutiny should the violation of a constitutional right be afforded?”

Despite its potential importance for protecting economic rights in the Tar Heel State, few North Carolinians know much about the clause. “Is it a secret weapon?” Berger asked. “I would say no. Is it something that could be explored more, whether it’s by literature, scholarship, or litigation? Absolutely.”

That exploration will likely have major impacts for North Carolinians. If Olson is correct, future court rulings in this state could produce ripple effects for constitutional protections across the country.

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