North Carolina Constitution - Infeasible Provisions

Infeasible Provisions

As per the Federal Supremacy Clause, all Federal law and the Constitution of the United States overrule the North Carolina Constitution. There are several provisions in the current North Carolina Constitution that may conflict with federal law and/or the US Constitution.

At least two provisions, carried over from the 1868 Constitution, are not enforced either because they are known to be void or would almost certainly be struck down in court.

• Article 6, section 8 disqualifies from office any person who shall deny the being of Almighty God. This article was carried over verbatim from the 1868 Constitution. However, in 1961, the federal Supreme Court, in Torcaso v. Watkins threw out a similar provision in the Maryland Constitution on the grounds that it violated the First and Fourteenth Amendments to the US Constitution. The First Amendment bars Congress from passing any law "respecting an establishment of religion," and this provision has long been considered binding on the states under the liberty clause of the Fourteenth Amendment. As a result, it has never been enforced. The North Carolina Attorney General opined that the provision likely does not comply with the First Amendment. On December 7, 2009, Cecil Bothwell was sworn in as Asheville City Councilman, and was revealed to be an atheist. Former NAACP president H. K. Edgerton threatened to file a lawsuit against the city.

• Article 6, section 4 requires that a person be literate in the English language before registering to vote. This provision was widely used to effectively disenfranchise African-American voters in the Jim Crow era. As such, it is widely held that this section violates the Voting Rights Act. However, several attempts to remove this provision have failed.

In addition, federal and state court decisions have narrowed the scope of at least one section of the constitution. Article 2, sections 3 & 5, sub-section 2 state that counties must not be divided when drawing state legislative districts. This provision is known as the "Whole County Provision." However, in 1981, the federal Justice Department ruled that this provision was inconsistent with the Voting Rights Act. The state thus ignored the Whole County Provision until 2002. That year, the North Carolina Supreme Court ruled that the state constitution's equal protection clause presumed single-member districts and was thus a limitation on the Whole County Provision. It can also be argued that the "one person, one vote" rule from Reynolds v. Sims also limits this provision.

Section 2 of Article 11 ("Death Punishment") limits executions to "...murder, arson, burglary, and rape". Per Kennedy v. Louisiana the last 3 are inapplicable.