- As currently practiced in North Carolina, tiers-of-scrutiny doctrine requires courts to distinguish between fundamental rights and economic rights
- That distinction doesn’t work, because the North Carolina State Constitution explicitly protects many economic rights, and its text and history make it clear that those rights have always been regarded as fundamental
- In a recent brief, the John Locke Foundation and UNC Law Professor John V. Orth argue that the misapplication of tiers-of-scrutiny doctrine has repeatedly led the courts astray in a case challenging North Carolina’s Certificate of Need law
Note: This is the third in a series of research briefs discussing rational basis review, a judicial doctrine that is being used to shield economic regulations from constitutional challenges.
How should North Carolina’s courts respond when someone complains that the application of a duly enacted law violates his or her constitutional rights? The North Carolina Court of Appeals held in 1983 that:
[I]f the right infringed upon is a “fundamental” right, then the law will be viewed with strict scrutiny and the party seeking to apply the law must demonstrate a compelling state interest for the law to survive constitutional attack; if the right infringed upon is not a fundamental right then the party applying the law need only demonstrate that the statute is rationally related to a legitimate state interest.
As noted in part two of this series, this “tiers-of-scrutiny” approach to constitutional adjudication was originally adopted by the federal courts in the 1930s to resolve a conflict between the progressive legislators and administrators who wanted to create an omnipotent regulatory state and the judges who felt honor bound to uphold constitutional limits on governmental power.
As a compromise between those two factions, tiers-of-scrutiny doctrine worked quite well. It left progressives free to regulate economic activity to their hearts’ content, while judges could go on defending the kinds of rights they really cared about, such as freedom of speech and of the press, equal protection, and the right to vote.
For that reason, and perhaps also because state court judges held the United States Supreme Court in such high regard, state court judges began to apply tiers of scrutiny in litigation arising under state constitutions, often with little or no regard to the text and history of those constitutions. That process, which is sometimes called “lockstepping,” can lead courts seriously astray, which is what has happened in North Carolina.
An untenable distinction
Tiers-of-scrutiny doctrine rests on what could most charitably be described as a “legal fiction.” It assumes that there is a genuine difference between economic rights and fundamental rights and that courts can and should distinguish between the two. As United States Supreme Court Justice Clarence Thomas has observed, however, “[O]ur Constitution renounces the notion that some constitutional rights are more equal than others. A plaintiff either possesses the constitutional right he is asserting, or not …. A law either infringes a constitutional right, or not.”
It was possible to maintain that legal fiction in the federal courts because the federal constitution contains very few provisions that explicitly protect economic rights. It should have been harder — indeed, it should have been impossible — to maintain it in North Carolina because the North Carolina State Constitution explicitly protects multiple economic rights, and its text and history show beyond doubt that those rights are fundamental. Nevertheless, the North Carolina courts adopted tiers-of-scrutiny doctrine anyway, and they have been using it to insulate economic regulations from judicial review ever since.
A miscarriage of justice
Singleton v. NC DHHS, which was discussed in part one of this series, illustrates why that is a problem. The plaintiff, Jay Singleton, is an eye surgeon who claims North Carolina’s Certificate of Need law violates his rights under several provisions of Article I of the state constitution. These provisions include:
Section 1: [A]ll persons … are endowed … with certain inalienable rights [including] the enjoyment of the fruits of their own labor.
Section 19: No person shall be … deprived of life, liberty or property but by the law of the land.
Section 32: No person or set of persons is entitled to exclusive or separate emoluments or privileges … but in consideration of public services.
Section 34: Perpetuities and monopolies are contrary to the genius of a free state and shall not be allowed.
Rather than giving him an opportunity to explain how the law violates those provisions, the courts have steadfastly refused to do so. Instead, they have repeatedly dismissed his case without a hearing, and they have justified those decisions by finding that his claims are subject only rational basis review.
The John Locke Foundation weighs in
The most recent instance occurred last December, when a three-judge panel of the Wake County Superior Court dismissed the case under rational basis review. In March of this year, Dr. Singleton filed a petition asking the North Carolina Supreme Court to review the Superior Court Panel’s decision, and in April, the John Locke Foundation and University of North Carolina Law Professor John V. Orth filed a joint brief in support of that request.
In that brief, we argue that rational basis review is the wrong standard for Dr. Singleton’s claims because all of them protect fundamental rights:
Article I of the North Carolina Constitution is more than a mere miscellany of rights; it is a declaration of “the great, general, and essential principles of liberty and free government.” Such principles are, by definition, fundamental. The fact that the North Carolina Constitution uses those words to describe the principles enumerated in Article I should be sufficient to show that those principles and the rights they protect — including the rights protected by Sections 1, 19, 32, and 34 — must be afforded at least a modicum of protection by the courts, and that conclusion is reinforced by Section 35, which reminds us that “[a] recurrence to fundamental principles is absolutely necessary to preserve the blessings of liberty.” (Citations omitted.)
We go on to provide extensive historical evidence showing that Sections 1, 19, 32, and 34 of Article I have always been regarded as fundamental. We also say:
By dismissing plaintiffs’ claims under rational basis review, the Superior Court Panel repeats a dangerous error that the lower courts have been making in CON Law cases for sixteen years. … Plaintiffs’ petition for discretionary review gives this court an opportunity to correct that error and bring tiers-of-scrutiny practice in North Carolina into proper alignment with the text and history of the North Carolina Constitution. The court should seize that opportunity.
Future installments in this series will explain why applying rational basis review to constitutional claims like Dr. Singleton’s is so dangerous and suggest how the Supreme Court might correct the problem.
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