When legislators veto constitutional rights
Published November 10, 2022
“The answer to all your questions is money.”
For well over 200 years, Americans have understood and widely accepted the concept of “judicial review” – the idea that the courts, and in particular, the U.S. Supreme Court and state high courts, will have the final say as to what laws and acts of government are and aren’t constitutional.
There have, of course, been many efforts to challenge and undermine the premise of judicial review. President Andrew Jackson and his allies infamously and shamefully ignored a Supreme Court ruling by forcing the expulsion of Native American tribes from their land – a reprehensible act that ultimately gave rise to the “Trail of Tears.”
And there have been numerous efforts by state-level politicians – most notably prior to and during the Civil War – to “nullify” federal authority.
But for the most part, the idea that the judiciary serves as the ultimate referee in disputes over constitutional and rights – even at the state level – remains widely accepted across the political spectrum.
That said, events in North Carolina in recent years have served to highlight the painful truth that for some rights, the notion that the courts have the final say often proves illusory – particularly when the rights in question require the appropriation of public dollars.
The most obvious example here is public education.
It’s been a quarter century since the North Carolina Supreme Court ruled in the Leandro case that the state’s schoolchildren have a constitutional right to a sound basic education. Yet as has been repeatedly demonstrated in and out of court during the intervening years, this is a guarantee that budget writers at the North Carolina General Assembly have – much like Andrew Jackson with the rights of Native Americans – ignored.
Despite repeated judicial findings that large numbers of students – particularly in low-wealth districts – were receiving anything but a sound basic education, legislators of both parties have continually turned a blind eye.
This situation appeared to finally come to a head Nov. 4 when the state Supreme Court directed the trial court in the case to order state officials to transfer the funds that would begin to make the right a reality, but it remains to be seen whether Republican elected officials will seek to provoke a constitutional crisis by ignoring such orders.
It’s also easy to envision a scenario in which a court reconfigured by the midterm elections might quickly revisit and rethink the matter of enforcement.
And if either of those things occur, it will strike thousands of individuals and families who have suffered for decades in the state’s chronically dysfunctional system of providing services to people with mental health challenges, developmental disabilities and substance abuse disorders — known as MHDDSA — as quite familiar.
As with public education, North Carolina’s MHDDSA systems have been the subject of repeated court orders to deliver services to which tens of thousands of people are constitutionally and statutorily are entitled. And time and again, those court orders have gathered dust on shelves as state legislators have endlessly pontificated, procrastinated, and in many cases, simply ignored them.
Just last week in the Samantha R case, a Superior Court judge ordered the state to provide services to thousands of eligible people with intellectual and developmental disabilities who’ve been stuck on a Kafkaesque waiting list that can take, at best, years to get through.
But, as NC Policy Watch’s Lynn Bonner reported, state officials will likely appeal the order. And even if they don’t, the past record offers little indication that the General Assembly will make compliance with the order feasible by appropriating the funds necessary to get the job done.
Likewise, the Eighth Amendment to the U.S. Constitution has long barred the infliction of cruel or unusual punishment, but convincing elected officials, even under judicial order, to appropriate the money necessary to assure that scores of prisons and jails are anything better than miserable and dangerously understaffed hellholes is well-nigh impossible. A former corrections officer in Alabama recently likened that state’s prison system to “third world country with a concrete floor” in which “everybody’s in danger — the officers, the incarcerated individuals.” North Carolina has its own serious and similar prison staffing shortages.
And the list goes on. Wherever groups of people lack wealth and/or political clout – be they low-income school children, people with disabilities, individuals who are incarcerated or, indeed, the people society hires to serve these and other marginalized groups – constitutional and statutory rights and protections tend to be very poorly enforced. This is especially true when the enforcement requires elected officials to appropriate funds or, God forbid, ask the wealthy to pay slightly higher taxes.
The post-pandemic phenomenon in which more and more Americans are saying “no” to difficult jobs that pay lousy wages only exacerbates the problem.
The bottom line: The late television producer Don Ohlmeyer is often credited with having uttered the cynical but trenchant observation that, at least in the worlds of sports and entertainment, “the answer to all your questions is money.”
And sadly, in 21st century North Carolina, Ohlmeyer’s take also speaks a hard but undeniable truth when it comes to the enforcement of an array of basic constitutional rights.