Honoring Reconstruction's legacy: Checking legislative power

Before the mid-19th century, many states in the U.S. had no real separation of powers because the legislative branch dominated government. As French diplomat and political scientist Alexis de Tocqueville wrote in his 1835 book "Democracy in America," "the legislature of each State is supreme; nothing can impede its authority." Legislators often appointed governors and judges, and Southern governors historically had little authority. 

But after a series of fiscal disasters in the 1830s blamed on state lawmakers, constitutions were amended or rewritten to transfer power from legislatures to voters or to the judicial or executive branches. Following the Civil War, the South's Reconstruction constitutions — besides giving black men the right to vote, establishing public education systems, and ending property ownership requirements for voters — continued this trend of limiting lawmakers' power.

For example, South Carolina's 1868 constitution mandated separation of powers for the first time, had voters elect the governor, and gave the governor a veto. Alabama's required a two-thirds vote of the legislature to lend state money to a private company, while Arkansas' banned laws that applied only to certain companies or municipalities. 

The drafters of Reconstruction constitutions, which included freedmen and anti-Confederate "scalawags," also instituted popular elections for judges and governors rather than having them appointed by state lawmakers. The theory was that elections would make those branches of government more willing to check legislatures, because they could assert their authority on behalf of the voters who chose them. 

In his book "The People's Courts," Fordham Law professor Jed Shugerman notes that the drafters of state constitutions believed elected judges would be more likely to enforce the new limits against legislative excess. Shugerman's research showed that elected supreme courts, including those in Louisiana and Tennessee, did strike down many more state laws as unconstitutional than their appointed predecessors.

Dispersing democratic legitimacy

Some Reconstruction constitutions radically changed the balance of power by giving democratic legitimacy to governors and courts. The 1868 constitutions of Alabama, Georgia, and North Carolina allowed voters to choose their supreme courts for the first time. 

West Virginia, which became a state in 1862, is the only one in the South that has always elected its judges. Most Southern states — nine out of 13 — authorized legislatures to choose judges under their original constitutions, according to the National Center for State Courts. Soon after other states began experimenting with judicial elections, Mississippi became the first Southern state to elect all of its judges in 1832, and over the next two decades other states in the South also began to elect judges. During the war, Confederate constitutions in Florida, Louisiana, and Virginia gave the power to choose supreme courts back to politicians. 

Even though North Carolina's first constitution of 1776 required separation of powers, it also allowed the legislature to choose judges, governors, and many local officials. Decades after the governor became an elected office in 1835, the 1868 constitutional convention adopted judicial elections. Convention delegate Abraham Galloway, a former fugitive slave who returned to North Carolina after the war, described his community's local courts — chosen by Confederate lawmakers — as a "bastard born of sin and secession." Delegate Henry Ray said that, under the current system, "men had been murdered in his county by being condemned without proper evidence."

But as reactionary "Redeemers" took control after Reconstruction, they undid many of the changes that made state governments more democratic and amended constitutions in ways that kept black men from voting. Historian Steven Hahn, in his book "A Nation Under Our Feet," says that these constitutional changes "may be seen as the capstone of a lengthy offensive by which white employers and property owners attempted to construct a post-emancipation regime of domination and subordination."

The post-Reconstruction changes included giving power back to legislatures. In 1877, Georgia reverted to legislative appointment of judges. The year before that, the North Carolina legislature referred 30 constitutional amendments to voters, with the goal of gaining back the power it had lost in 1868, according to historian John Orth. This included restoring legislators' control over lower courts and local officials. Another amendment "unpacked" the state Supreme Court by removing two seats. Others mandated racial segregation and created obstacles to voting. 

Today's legislative power grabs

Democratic norms are facing unprecedented threats in America. Politicians are attacking judges when they don't like their rulings. Nowhere is this more evident than in North Carolina. In 2017, UNC-Chapel Hill political science professor Andrew Reynolds cited a report from the Electoral integrity Project to argue that North Carolina is now "a deeply flawed, partly free democracy that is only slightly ahead of the failed democracies that constitute much of the developing world."

Since voters elected a Democratic governor and state Supreme Court in 2016, North Carolina's gerrymandered Republican legislature has dedicated itself to passing laws giving it more control over the other branches. New laws have given legislators the power to choose executive branch officials, and most of them have been ruled unconstitutional. When the head of the state Senate was asked about limiting the governor's authority, he joked, "Does he still have any?"

This summer, the North Carolina legislature approved a constitutional amendment for the November ballot that would have allowed it to "control the powers, duties, responsibilities, appointments, and terms of office" of any state board or commission. An editorial called it "a dangerous power-grab by an elite few" that would take "a wrecking ball" to the separation of powers. A state court struck down the ballot language as too misleading, and rather than clearly explaining their proposal to the voters, lawmakers passed a scaled-back amendment allowing it to select the state Board of Elections. 

Another amendment on North Carolina's ballot would give the legislature control over choosing judges for vacant seats. If voters ratify it, legislators could create two new seats on the state Supreme Court — which currently has a 4-3 Democratic majority — and fill the two "vacant" seats during a lame-duck session that's already scheduled for late November. 

Republican legislators have criticized the current system under which the governor fills vacant seats. However, a recent report on reforming judicial selection from the Brennan Center for Justice recommends that governors appoint judges, because "concentrating power in one decision maker promotes greater accountability." The Brennan Center also noted that in the only states where legislatures still pick judges, South Carolina and Virginia, the appointments "exhibit signs of a politicized selection process, manifested by accounts of backroom dealing, … charges of nepotism and cronyism, as well as failure to fill vacancies due to legislative gridlock."

Another constitutional amendment proposed nearly a year ago would have ended judicial elections in North Carolina and let legislators pick all state court judges, which Facing South noted "would bring back the kind of system that North Carolina eliminated 150 years ago." 

Legislatures in other Southern states have also proposed amendments that would expand executive power, though less drastically than in North Carolina. Arkansas, for example, was set to vote this year on an amendment giving the legislature authority to draft court rules and limit lawsuits by injured people, but the state Supreme Court struck down the measure as violating the state constitution's ban on bundling multiple provisions in one amendment — a ban that first appeared in the state's 1868 constitution. 

In West Virginia, an amendment on this year's ballot would give legislators control over the court's budget. West Virginia is the only state that prohibits lawmakers from reducing the courts' funding requests, which the state Supreme Court said has "insulated the judiciary from political retaliation." The West Virginia legislature recently impeached the entire state Supreme Court following a scandal over costly office renovations, but the court — staffed by substitute judges to avoid a conflict of interest — ruled the proceedings unconstitutional, citing limits on impeachment enacted during Reconstruction in 1872.

In North Carolina and other states, courts became more independent of the legislative branch during Reconstruction. But many Republican politicians today would prefer legislative dominance of state courts, which will become more important to protecting individual rights as President Trump  federal courts.

(Facing South intern Ben Barber provided research assistance for this story. This is the fourth story in a series on the legacy of progressive Southern constitutions that were rewritten during Radical Reconstruction. Others have covered the freedom to vote, empowering local communities, and educating the South's children.)