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Originalism and the North Carolina Constitution: Analyzing the Leandro Ruling

By Maclain Conlin

Federal Constitutional Structure

“The legislative, executive, and supreme judicial powers of government, ought to be forever separate and distinct from each other.” 

N.C. Const. of 1868, Art. I, § 6 (1868) 

“Frequently an issue of this sort will come before the Court clad, so to speak, in sheep's clothing: the potential of the asserted principle to effect important change in the equilibrium of power is not immediately evident, and must be discerned by a careful and perceptive analysis. But this wolf comes as a wolf.” 

Morrison v. Olson, 487 U.S. 654, 699 (1988), Scalia, J., dissenting. 


Since 1994, North Carolina has been torn apart by a heated court battle over its public school system. That year, a group of rural students and their families sued the State for failure to provide impoverished school districts with adequate funding, in violation of several provisions in the N.C. Constitution that guarantee, “a right to the privilege of education.” [1] On November 4, 2022, after decades of litigation, the North Carolina Supreme Court, in a 4-3 decision, ordered the State to increase its education budget by $5.6 billion per year over the next six years, [2] based on a policy report conducted by WestEd, “a progressive…group from San Francisco, CA.” [3] But the Court’s decision in Hoke County Bd. of Ed. v. State of North Carolina, 382 N.C. 386 (N.C. 2022) (commonly nicknamed Leandro after the case’s original lead plaintiff) while it has been lauded by many in North Carolina’s education establishment, [4] represents a disaster for the separation of powers and for school choice advocates who believe that “funding students, instead of systems,” [5] is the key to increasing academic success. But while the decision has been plausibly criticized by many on policy grounds, [6] very few advocates on either side have actually addressed the constitutional text and history at issue in the case. The Court’s opinion itself only devotes four out of one hundred and thirty-nine pages to the history of the relevant provisions, and Justice Berger’s eloquent dissent primarily focuses on how the Court’s ruling conflicts with prior precedent, not how it necessarily conflicts with the original understanding of Article I, § 15. [7] This is unfortunate. While Hoke County does probably contain policy errors and a misreading of prior rulings, the failure of its opponents to make any originalism-based arguments risks conceding that crucial ground. This paper seeks to provide those arguments. In the following pages, it will (1) survey the ratification history of the Education Provisions and the Appropriations Clause, (2) attempt to ascertain their original meaning, and (3) compare this original understanding with the Court’s Nov. 4 ruling. In doing so, this article will hopefully demonstrate beyond a reasonable doubt that the power of setting education policy in North Carolina is vested in the General Assembly, and not the courts. 

1. History and Context 

A. The Appropriations Clause 

There is more than one constitutional provision at issue in the funding case. In addition to the Education Provisions, there is also the inescapable Appropriations Clause, which states that, “No money shall be drawn from the State treasury but in consequence of appropriations made by law...” (emphasis added). [8] Since the General Assembly is the “power that makes laws” [9] (to use Samuel Johnson’s definition of a “legislature”) in North Carolina, this presumably means that no funds may be removed from the Treasury without the General Assembly’s express consent. The North Carolina Constitution has undergone several revisions, including in 1868 and 1971, but this Clause “dates from the [original] 1776 [state] Constitution.” [10] It was created in part due to the constant squabbles over funding between colonial legislatures, including North Carolina’s, and each colony’s royal governor, as well as “the long struggle between the English Parliament and the Crown over public finance…” [11] The U.S. Constitution contains a virtually identical provision, and in his legendary commentary on that document, Justice Joseph Story explained the reasoning behind it:


“As all…taxes [are] raised from the people, is highly proper, that [the legislative branch] should possess the power to decide, how and when any money should be applied for these purposes. If it were otherwise, the executive would possess an unbounded power over the public purse of the nation; and might apply all its monied resources at his pleasure.” [12]


Thus, the generation which ratified North Carolina’s original Constitution sought to “secure the power of the purse for their elected representatives.” [13]


But while the Appropriations Clause was drafted mainly with an overreaching executive in mind, it is worth noting that it contains no exception for the judiciary. In fact, North Carolina’s court system has recognized for some time that the requirement for legislative approval of funds applies equally to both branches. [14]


B. The Education Provisions 

Public education has a long history in North Carolina. In 1776, the original state constitution ensured the creation of a public university, but for several decades following its enactment, pre-college education was virtually all-private and limited to “the children of affluent families.” [15] In 1817, state senator Archibald D. Murphey, often nicknamed the “Father of Education” in North Carolina, proposed the creation of a statewide system of free public schools. [16] The General Assembly acted on his plan in 1824, passing a resolution entitled, “To Prepare A…System of Public Education,” [17] and on January 4, 1826, it finally became a reality with the creation of the State Literary Fund to support free public schools. [18] The State received a highly desirable federal educational grant in 1835, [19] and over the ensuing decades, the General Assembly continued to expand and regulate the public education system. [20] In 1853, lawyer Calvin H. Wiley was appointed as the first statewide Superintendent of Common Schools in North Carolina, a post that he would hold until the Civil War, and under his energetic leadership, “North Carolina's common schools are considered to have been among the best in the South.” [21]


The Civil War interrupted these incredible achievements. Bankrupt from the conflict, occupied by Union troops, and facing sky-high inflation, the General Assembly voted in 1866 to abolish the state public school system. [22] The legislature also feared that if the public education system was maintained, the Federal Government might “force colored children into [the schools], which our people would never consent,” as one state senator put it. [23] Ironically, the effort to deprive black children of an education still failed, as “the efforts of freedpeople and various agencies increased the number of schools for African Americans from 100 in December 1865 to 156 in March 1867.” [24] 

The following year, Congress passed the Military Reconstruction Act, which required North Carolina to draft a new state constitution which prohibited secession and guaranteed the right to vote for black men. [25] In 1868, elections were held for delegates to the state constitutional convention, and Republicans won 89% of the seats because most Democrats had still refused to take an oath of loyalty to the Union, and were therefore disenfranchised. Interestingly, over 10% of the delegates were black, the first time that a political body in North Carolina was not all-white. [26]


The Convention met in the winter of 1868 and drafted a constitution that “was markedly more progressive than its predecessor, including, for instance, the expansion of property rights to women and elimination of property qualifications from political participation.” [27] The delegates also had a clear vision for the future of North Carolina education, including a guarantee that free public schools would never be abolished again, as had happened the year before. This proposal in particular received strong support from the black delegation, foreshadowing Frederick Douglass’ admonition decades later that, “education . . . means emancipation. It means light and liberty. It means the uplifting of the soul of man into the glorious light of truth, the light by which men can only be made free.” [28] The assembly voted 88 to 12 to require that the State forever “guard and maintain” the “right to the privilege of education.” [29] In their concluding report, the convention’s committee on education included the following statement: 

“The Constitution framed by our ancestors in 1776, recognized the value of education. It provided for a University. This Constitution provides for a University and for free public schools for all the children of the State. All may see the difference between the success in life of the educated and uneducated man, yet as often as not, the uneducated man has been gifted with the greater degree of intellectual power; the cause of his ill success is that it has not been developed. We propose to "level upwards," to give to every child, as far as the State can, an opportunity to develop to the fullest extent, all his intellectual gifts. So noble an effort needs no vindication.” [30]


Specifically, the constitution required that:


“The General Assembly shall provide by taxation and otherwise for a general and uniform system of free public schools, which shall be maintained at least nine months in every year, and wherein equal opportunities shall be provided for all students.” [31]


Below, the document explained how this provision would be implemented: 

“Sec. 6. State school fund. The proceeds of all lands that have been or hereafter may be granted by the United States to this State, and not otherwise appropriated by this State or the United States; all moneys, stocks, bonds, and other property belonging to the State for purposes of public education; the net proceeds of all sales of the swamp lands belonging to the State; and all other grants, gifts, and devises that have been or hereafter may be made to the State, and not otherwise appropriated by the State or by the terms of the grant, gift, or devise, shall be paid into the State Treasury and, together with so much of the revenue of the State as may be set apart for that purpose, shall be faithfully appropriated and used exclusively for establishing and maintaining a uniform system of free public schools.


Sec. 7. County school fund; State fund for certain moneys. (a) Except as provided in subsection (b) of this section, all moneys, stocks, bonds, and other property belonging to a county school fund, and the clear proceeds of all penalties and forfeitures and of all fines collected in the several counties for any breach of the penal laws of the State, shall belong to and remain in the several counties, and shall be faithfully appropriated and used exclusively for maintaining free public schools. (b) The General Assembly may place in a State fund the clear proceeds of all civil penalties, forfeitures, and fines which are collected by State agencies and which belong to the public schools pursuant to subsection (a) of this section. Moneys in such State fund shall be faithfully appropriated by the General Assembly, on a per pupil basis, to the counties, to be used exclusively for maintaining free public schools.” [32]

The 1868 Framers sought to ensure that no future legislature would have the ability to abolish the public school system, since certain kinds of funds would be specifically earmarked for education each year. [33] Beyond that baseline, the General Assembly would have broad discretion to appropriate additional funds as it saw fit. And indeed, it did so, passing laws throughout the 1880s and 1890s that increased education spending. In 1899, for example, a statute was passed that appropriated an additional $3.6 million in today’s money statewide for public schools. [34] However, compared to modern standards, spending on education, both discretionary and constitutionally required, was meager. For example, “in 1886 in New Bern, per-pupil spending at the local public schools was $11 per white student….” [35] Today in New Bern, N.C., even accounting for inflation, that number is thirty times higher. [36]


To sum up, the 1868 Constitution mandated that the General Assembly provide a uniform system of free public schools, and that certain kinds of taxes and revenue sources be used exclusively to fund public education. In addition, it also gave the legislature broad authority to provide additional funding for public schools beyond that minimum. And it also reaffirmed, without comment or debate, the prohibition on the appropriation of public funds without legislative approval. 

II. To Interpret a Constitution 

A. Ground Rules 

When interpreting any legal document, from a constitution to a liability waiver, there are a few basic principles derived both from legal precedent and the structure of the English language which must be said to govern. In their landmark treatise on this topic, Reading Law: The Interpretation of Legal Texts, Justice Antonin Scalia and Professor Bryan Garner have codified over fifty of these guidelines. [37] Five of them are relevant here:

Canon 6: Ordinary-Meaning Canon. “Words are to be understood in their ordinary, everyday meanings-unless the context indicates that they bear a technical sense.” [38]

Canon 11: Mandatory/Permissive Canon. “Mandatory words impose a duty; permissive words grant discretion. [39]

Canon 25: Whole-Text Canon. The text must be construed as a whole.” [40]

Canon 26: Surplusage Canon. “If possible, every word and every provision is to be given effect. None should be ignored. None should be needlessly given an interpretation that causes it to duplicate another provision or to have no consequence.” [41]

Canon 27: Harmonious-Reading Canon. “The provisions of a text should be interpreted in a way that renders them compatible, not contradictory.” [42]


These rules are especially important in a case like this, where different parts of the same document seem, at first glance, to contradict each other. 

B. The Hard Part

In 1824, Chief Justice John Marshall wrote that, “The enlightened patriots who framed our constitution, and the people who adopted it, must be understood to have employed words in their natural sense, and to have intended what they have said.” [43] Under this rule, it would seem that the Appropriations Clause is “categorical and without exception,” [44] barring any regulation of state funds without the express consent of the legislature. However, this would at once run afoul of Canons 26 and 27, as this would render the Education Provisions a dead letter, and would transform Article I from a command into a suggestion, in violation of Canon 11. Alexander Hamilton once said that, “there ought always to be a constitutional method of giving efficacy to constitutional provisions.” [45] Under an absolute reading of the Appropriations Clause, this would become impossible. The General Assembly could use revenue from land sales, for example, for a non-educational purpose without means of redress. On the other hand, Canon 27 does not permit us to discard the Appropriations Clause either; rather, it requires us to find “a way that renders [the provisions] compatible, not contradictory.” [46] Furthermore, Canon 26 requires that the “right of education” provision in Article I be read, not in isolation, but in conjunction with the implementation provisions of Article IX. If Article I already secured the right to an education, why would the means of implementing this right be carefully spelled out in later articles? This does not occur with any other right found in the North Carolina Constitution, such as the freedom of speech. 

Perhaps the best way to explore this complex issue would be through an analogy. Let us suppose that a teenage boy’s parents have left him in charge of his younger sister for the evening while they go out to dinner. Before leaving, the parents tell their son the following: “Your duty tonight is to take care of your sister. Make sure that she is fed, completes her homework, doesn’t get hurt, and goes to bed by eight o’clock.” In this case, we can assume that if the son performs all the specific steps listed in the second sentence, he will have fulfilled his general duty under the first sentence. He may do more to take care of his sister, such as ensuring that her room is clean before she goes to bed, but he is not required to do so. In the same way, if the General Assembly fulfills its specific duties under Article IX, then it also fulfills its general duty to provide free public education under Article I. By enforcing those standards, the Appropriations Clause is not violated, because the specific provision of state funds in Article IX has already been agreed to in advance by the legislative branch, and does not require an additional discretionary appropriation. This interpretation is buttressed by the fact that in the late 1800s, the General Assembly continually altered the state education budget, and no one questioned this discretion absent an independent constitutional violation, such as an Equal Protection claim. [47]

C. Applying the Education Provisions in the Twenty-First Century 


Under the interpretation advocated for in Part II, the General Assembly’s recent Acts regarding public education easily pass constitutional scrutiny, since both sides in Hoke County have conceded that the requirements laid out in Article IX have been met. However, even if this interpretation is false, and the state judiciary is permitted to engage in a wide-ranging inquiry into North Carolina’s education budget beyond the strict text of Article IX, there is still no constitutional violation. Article I, Section 6 of the North Carolina Constitution requires that all legislative power be reserved to the General Assembly. Thus, in order to prove that the legislature has failed to uphold Article I despite abiding by Article IX, it must be proven that North Carolina’s level of education funding is not a plausible or reasonable means of providing free education to the people. After all, if the General Assembly’s policy choice is reasonable, to second-guess it would be to abandon any pretense of checks and balances. 

When one looks at the hard evidence, we find that North Carolina’s educational setup is far from unreasonable under modern-day standards. The General Assembly has chosen to pursue a general two-prong strategy for providing educational opportunities to North Carolinian students: 

I. Increased spending on public education. North Carolina spends more money on its public schools as a share of its overall budget (61.6%) than any other state in the South, and is 13th in the Nation overall. [48]

II. Increased access to charter schools and school vouchers [49] as a means of promoting educational competition. North Carolina’s laws are largely friendly to charter schools, and between 2011 and 2021, the number of students in North Carolina attending charter schools increased by 213%. [50] This is an important element, because higher educational funding does not, by itself, increase the 


[51] The District of Columbia spends more than twice as much per-pupil on its public schools than North Carolina, and yet, its average test scores are 12 points below the national average while North Carolina’s test scores are above the national average. [52] Instead of simply expecting a higher dollar figure to solve its educational problems, North Carolina has recognized that competition is one of the best ways to improve quality. [53]


The North Carolina General Assembly’s budget allocation “bears a rational relation to” [54] the goal of improving educational quality. As a result, absent a clear textual mandate, these reasonable (and effective) decisions, made by the people of North Carolina, cannot be set aside by the judiciary.



The separation of powers is not merely a slogan or a beneficial guiding principle. On the contrary, it is the entire basis of our system of government, upon which the American experiment in republicanism lives or dies. In 2011, Antonin Scalia, then a Justice of the U.S. Supreme Court, was asked to testify before Congress on what truly differentiated the United States from totalitarian regimes around the world. He famously gave the following answer: 

“If you think that a bill of rights is what sets us apart, you're crazy. Every banana republic in the world has a bill of rights. Every President for life has a bill of rights. The bill of rights of the former ‘Evil Empire,’ the Union of Soviet Socialist Republics, was much better than ours. I mean it, literally. It was much better. We guarantee freedom of speech and of the press -- big deal. They guaranteed freedom of speech, of the press, of street demonstrations and protests; and anyone who is caught trying to suppress criticism of the government will be called to account. Whoa, that is wonderful stuff! 

Of course -- just words on paper, what our Framers would have called a parchment guarantee. And the reason is, that the real Constitution of the Soviet Union -- you think of the word ‘constitution,’ it doesn't mean a ‘bill;’ it means ‘structure;’ [when] you say a person has a sound ‘constitution,’ [he] has a sound ‘structure.’ The real Constitution of the Soviet Union, which is what our Framers debated that whole summer in Philadelphia in 1787 -- they didn't talk about the Bill of Rights; that was an afterthought, wasn't it? -- that Constitution of the Soviet Union did not prevent the centralization of power, in one person or in one party. And when that happens the game is over; the Bill of Rights is just what our Framers would call a parchment guarantee. [T]he real key to the distinctiveness of America is the structure of our government.” [55] 

Justice Scalia, if it may be said of anyone, truly understood the mind of a Founding Father. As Thomas Paine once said, “A body of men holding themselves accountable to nobody ought not to be trusted by anybody.” [56] The temptation to centralize power in order to increase efficiency and speed is very strong, but we must remember the dangers inherent in such a move. The moment that the text of any document is ignored in order to fulfill a particular goal, the words of that document lose all force. The ugly reality of cases such as Korematsu v. United States, [57] are a testament to the dangers of valuing apparent utility above clear constitutional mandates. Perhaps the budget outline handed down by the North Carolina Supreme Court will one day be enacted. Or perhaps the people of North Carolina will maintain their current educational policies. But under either alternative, the wise structure of our state constitution, including the separation between legislative and judicial power, must be zealously preserved. 

[1] 1 N.C. CONST. ART. I, § 15 (“[T]he people have a right to the privilege of education, and it is the duty of the State to guard and maintain that right….”); see also ART. IX, § 2(1) (“The General Assembly shall provide by taxation and otherwise for a general system of free public schools,...wherein equal opportunities shall be provided for all students….”)

[2] It is worth noting that the N.C. Supreme Court has recently signaled its willingness to reconsider this decision, at least in part. See Keung Hui, NC Supreme Court blocks transfer of school funds in Leandro court case, The News and Observer, March 3, 2023, 

[3] John Locke Foundation, Leandro v. State of North Carolina Explained (August 31, 2022),, see Timeline, February 2018. 

[4] Alex Granados, State Supreme Court orders state to transfer funds for Leandro plan, EdNC (November 4, 2022) an/, see paragraphs 12 and 13.

[5] Corey DeAngelis, Funding Students, Instead of Systems, John Locke Foundation (January 29, 2021) 

[6] Terry Stoops, Shortcomings of the WestEd Report: Student Achievement, John Locke Foundation (February 19, 2020); see also generally, Terry Stoops, Leandro v. State of North Carolina Reading List, John Locke Foundation (August 22, 2022)

[7] See generally Hoke County Bd. of Ed. v. State of North Carolina, 382 N.C. 386 (N.C. 2022), Berger, J., dissenting. 

[8] N.C. CONST. ART. V, § VII.

[9] Cited in Arizona State Legislature v. Arizona Independent Redistricting Commission, 576 U.S. 787, 814 (2014). 

[10] The North Carolina State Constitution, ORTH AND NEWBY 2ND ED., p. 154. 

[11] Id.

[12] Joseph Story, Commentaries on the Constitution of the United States, 3:§§ 1341-43, (1833).

[13] The North Carolina State Constitution, ORTH AND NEWBY 2ND ED., p. 154. 

[14] See State v. Smith, 289 N.C. 303 (1976); also Richmond County Bd. of Ed. v. Cowell, 254 N.C. App. 422 (2017).

[15] Benjamin Justesen & Scott Matthews, Public Education, ENCYCLOPEDIA OF NORTH CAROLINA, (2022) 

[16] Id.

[17] Resolution to Prepare a Plan or System of Public Education, Acts Passed by the General Assembly of the State of North Carolina 1824, 96 (Dec. 31, 1824).

[18] An Act to Create A Fund for the Establishment of Common Schools, Acts Passed by the General Assembly of the State of North Carolina 1825, 3-4 (Jan. 4, 1826).

[19] Justesen & Matthews.

[20] See generally North Carolina Education 1801 to 1900,, 

[21] Justesen & Matthews

[22] Id.

[23] Ethan Roy & James Ford, Deep Rooted: A Brief History of Race and Education in North Carolina, EdNC (Aug. 11, 2019)

[24] See Magna Carta Libertatum, §61.

[25] Id.

[26] Earl James, Constitutional Convention: 1868, “Black Caucus,” Encyclopedia of North Carolina (2008) 

[27] Hoke County Bd. of Ed. v. State of North Carolina, 382 N.C. 386 (N.C. 2022), maj. op., paragraph 112.

[28] Cited in Zelman v. Simmons-Harris, 536 U.S. 639, 671 (2002), Thomas, J., concurring. 

[29] Report of the Committee on Education, Common Schools, University and the Means of Their Support, Journal of the Constitutional Convention of the State of North-Carolina, at Its Session 1868, 338.

[30] Id.

[31] N.C. CONST., ART. IX, § 2(1). 

[32] Id.

[33] “[T]hese two provisions work in tandem” to “guarantee every child in the state an opportunity to receive a sound basic education.” Silver v. Halifax Cnty. Bd. of Comm'rs, 371 N.C. 855, 862 (2018).

[34] North Carolina Education 1801 to 1900,

[35] Roy & Ford. Until the N.C. Supreme Court’s decision in Puitt v. Commissioners, 94 N.C. 709 (1886), local school districts used a variety of tax schemes to ensure that white public school students received more per-pupil funding than black public school students. 

[36] $11 in 1886 would be worth $353.21 today. See CPI Inflation Calculator, 

Comparatively, Craven County, where New Bern is located, now spends at least $10,605 per student each year. See Craven County Schools Data from the 2018-2019 school year, U.S. News and World Report.

[37] Antonin Scalia & Bryan Garner, READING LAW: THE INTERPRETATION OF LEGAL TEXTS (2012).

[38] Id., § 6.

[39] Id., § 11.

[40] Id., § 25.

[41] Id., § 26.

[42] Id., § 27.

[43] Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 71 (1824).

[44] Maryland v. King, 569 U.S. 435, 466 (2013), Scalia, J., dissenting. 

[45] The Federalist No. 80 (Alexander Hamilton).

[46] Scalia & Garner, § 27.

[47] Puitt v. Commissioners, 94 N.C. 709 (1886) (“This law…discriminates between the races…and is therefore in conflict with…the constitution…”).

[48] Leandro v. State of North Carolina Explained, John Locke Foundation,

[49] Kaitlyn Shepherd, Highlights from the History of North Carolina’s Opportunity Scholarship Program, John Locke Foundation (May 3, 2023),

[50] Robert Luebke, Public Schools in N.C. Lose Students to Private, Charter, Home Schools, John Locke Foundation, (Jan. 26, 2022), 

quality of education.

[51] Jude Schwalbach & Lindsey Burke, High Public School Spending in DC Hasn’t Produced Desired Outcomes, Heritage Foundation,

(May 1, 2018), comes.

[52] State Comparison Compared to the Nation, The Nation’s Report Card (2022), 22R3 

[53] For additional data on the qualitative benefits of school choice within the public school system, see Charter Schools and Their Enemies, THOMAS SOWELL 1ST ED., pp. 7-50. 

[54] Romer v. Evans, 517 U. S. 620, 631 (1996). 

[55] Antonin Scalia, Opening Statement on American Exceptionalism to a Senate Judiciary Committee (Oct. 5, 2011).

[56] Thomas Paine, THE RIGHTS OF MAN, (1791).

[57] 323 U.S. 214 (1944)

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