Although there have been scores of state constitutional amendments since 1776, the Old North State has adopted only 3 state constitutions.
As part of the over 1,500 page tome, North Carolina Government, 1584-1974: A Narrative and Statistical History (1975), John L. Sanders writes: “The people of North Carolina have treated their constitutions with conservatism and respect.” (Although some states have had fewer, others have had as many as 5 or 10.)
From mid-January to mid-March, 150 years ago, convention delegates drafted the state’s second constitution.
Drafted during a tumultuous time, the proposed 1868 state constitution was controversial. Some contemporaries referred to the document as “Canby’s Constitution.” On March 2, 1867, Congress passed the Reconstruction Act. As a result, the 11 states of the former Confederacy were divided into 5 military districts. To rejoin the Union, each respective state had to form a constitution that conformed with the U.S. Constitution.
The Second Military District consisted of South Carolina and North Carolina. General Edward Canby was the commander of that district. The Kentucky native and career Army man ordered the constitutional convention to meet in January 1868. (Constitutional efforts of 1866 had already been rejected.)
Of the 107 Republican delegates, 18 had moved from the North and 15 were African Americans. Critics and opponents of the 1868 state constitutional convention believed “corrupt and doubtful representatives” comprised the assembly. Arguably, the proceeding’s most influential delegate was native Ohioan Albion W. Tourgee, a novelist, newspaper editor, lawyer, and later superior court judge who worked later to reform the state’s civil codes.
To make a long story short, the state constitution was approved (93,086 to 74,016) among qualified voters. Shortly afterward, the state was no longer under military rule. During the 1870s, many opponents of the 1868 constitution worked to amend certain aspects of the document.
What were some changes made under the new 1868 constitution? Most of the language of the 1776 Declaration of Rights remained the same. Within the new constitution, however, there were significant changes reassuring “paramount allegiance” to the national government (Article 1, Section 4, 5). There were other notable changes: the prohibition of slavery (Art. 1, Sec. 33).
One of North Carolina’s most famous antebellum leaders, Archibald DeBow Murphey, had once been in debtor’s prison. Section 16 changed circumstances for those in similar situations: “There shall be no imprisonment for debt in this State, except in cases of fraud.” Article 1 also ensured that the people elected all judges, county officials, state legislators, and state executive officers. Also, property qualifications for males were no longer needed to vote.
North Carolina’s governor would serve a four-year term. North Carolina had always had a weak executive branch, but the 1868 constitution strengthened that department. Before 1868, the governor was elected by the lower House of Commons and served a one-year term, and a two-year term after 1835.
According to the 1868 Constitution, the executive department should also include the Office of Lieutenant Governor, a Secretary of State, an Auditor, a Treasurer, a Superintendent of Public Works, an Attorney General, and a Superintendent of Public Instruction. All were to be elected by “the qualified electors of the State” for four-year terms.
Other significant changes included the removal of religious tests for office-holding (Art. 6, Sec 5). Two more were the adoption of the township-county commission form of government (Art. 7) and the inclusion of a “general and uniform system of Public Schools” (Art. 9, sec. 2).
In their respective Declaration of Rights, all three state constitutions remind us that liberty is preserved by a “frequent recurrence to fundamental principles.” I hope this 150th anniversary of the 1868 N.C. Constitution reminds us to familiarize ourselves with this important document and its development.
