Uncut HB2: What Would the Founders Do?

What’s the solution to NC’s broken bathroom law? Just look to the Founders.

An unedited version of that posting is here.  The editor cut out all my references to the Bible. After it came out, I asked her why. Her explanation is at the end.

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North Carolina’s Broken Bathroom Law: What Would the Founders Do?

“There is no one righteous, not even one.” Romans 3:10

HB2, North Carolina’s “bathroom law,” continues to plague the state. We’re in finger-pointing disarray, and we’re suffering from boycotts – banishing even Basketball.

The Republican General Assembly and Democratic Governor are tantalizingly close to compromise.  There’s much agreement about repealing the crux of HB2, the bizarre rule that your birth certificate determines the bathroom you use – the kind of rule that led to the headline, “Transgender boy wins Texas girls wrestling championship.” The stumbling block is HB2’s ban on local nondiscrimination ordinances (NDOs) covering things like city jobs and public housing.

HB186, proposed by Rep. McGrady, several other Republicans, and a few Democrats, would allow those NDOs. The hang-up is whether NDOs need voter OKs via plebiscites (referendums or referenda) – as a check on local authorities.

Our nation’s Founders, worried about limiting government, deliberately left plebiscites out of the Constitution. But two techniques they relied on, sunsets and supermajorities, could help North Carolina.

Positions

I’m a Democrat, opposed to HB2, and in favor of almost anything that would stop the boycotts.  If each side demands unconditional surrender by the other, though, we may be stuck.

For some people, though, total victory seems like a moral imperative. Honest and caring people feel the other side is totally wrong. Seekers of dignity suggest some seekers of privacy are ignorant or bigoted. Some privacy-seekers say morality favors them.

There’s another perspective: “It is written: ‘There is no one righteous, not even one.’” So instead of evaluating people or positions, it’s more helpful to see what might help resolve disputes – looking at people’s actual interests.

Plebiscites

Limiting government power is a classic conservative concern. But plebiscites are not a classic technique. In Federalist Paper 49, Madison warned against a proposed plebiscite because of its “danger of disturbing the public tranquillity by interesting too strongly the public passions.”

Some Republicans say city councils might run amok. They say Charlotte voters would never let “gender expression” determine bathroom use. Charlotte would never have started the fight, they say, if its ordinance had faced the threat of a plebiscite.

Some Democrats see the HB186 plebiscite compromise as a deal-killer. It’s wellknown that “minorities fare worse in plebiscites than before legislatures.” Seekers of dignity get loose with language, though, when they say that the HB186 plebiscite compromise would let voters take away people’s “rights.” City councils don’t grant rights.  Constitutions do.  Courts, not city councils or voters, decide questions of Constitutional interpretation.  City councils do something else:  They grant privileges, or entitlements, or protections.  Not rights.

New Orleans allows open containers of alcohol on public sidewalks.  In lay terms, you might say, “I have a right to drink on the sidewalk.” But if New Orleans stopped allowing that, they wouldn’t be taking away your rights.

If there’s a right to something, city council action wouldn’t be needed to ratify it.  And voters couldn’t overrule it.

Eventually, the courts may decide many of the issues presented by HB2 – on the basis of what constitutional rights exist.  But in the meantime, the General Assembly can stop the boycotts by getting rid of HB2.

Underneath the “rights” rhetoric is a valid argument. Dignity isn’t sidewalk drinking.

Issues of dignity benefit from cool deliberation, in small groups.  For dignity, a “small-r” republican way is more courteous than a “small-d” democratic way.  So city councils protect dignity better than plebiscites do.

A plebiscite might showcase animosity toward transgender folks – demonization, rather than dignity. Even gay folks worry they might get targeted again, as they were with North Carolina’s Amendment One gay marriage plebiscite. While some folks like to watch fights, many of us would like less ugliness in politics.

For privacy, too, plebiscites are problematic.  Many parents worry that their children have little privacy from the media and modern culture generally.  A high-pitched media plebiscite campaign about transgender issues is not on those parents’ wish list.

It’s not just parents.  Lots of ordinary citizens have heard enough about HB2. In North Carolina, we could stand to turn the volume down. Plebiscites might turn it up.

Sunsets

Plebiscites aren’t the only way to prevent some rogue city council from overriding the will of the people. Sunsets do that, too.

A sunset is a fixed expiration date written into a law. When that day comes, the law dies. To bring it back to life, the governmental body that passed it needs to come back and pass it again.

The Founders put time-limited rules in the Constitution. Several constitutional provisions sunsetted in 1808. This one remains: “To raise and support Armies, . . . no Appropriation of Money . . . shall be for a longer Term than two Years.” The Constitution restricts Congress’s power to legislate for the future. The General Assembly could do the same for localities.

A guaranteed revote after the first post-NDO council election, or more often, protects against a council that overreaches. That is, the old council’s NDO would expire shortly after the new council takes office.  Addressing the classic conservative concern, a sunset limits government power, by shifting power to tomorrow’s voters.

Sunsets protect both dignity and privacy better than plebiscites.  With a sunset, a council race can serve as a substitute for a plebiscite on an NDO. But indirectly.  The actual campaign is not “NDO: Yes or No?”  It’s “Vote for Candidate X,” or “Vote against Candidate Y.”  The relatively restrained campaign of a council race should be less mean to LGBTQ folks and will disturb “tranquillity” less than the hoopla of a plebiscite. To deal with HB2, plebiscites are less attractive than sunsets.

Supermajorities

The U.S. Constitution is full of “supermajority” rules that limit governmental power. The Constitution requires 2/3 votes or one or both Houses of Congress for impeachment, for treaty ratification, to expel a Member, to override a veto, and more. And 3/4 of states are needed to approve a constitutional amendment.

If you worry about city councils running amok, supermajorities are a way to put the brakes on. The original Charlotte bathroom ordinance passed 7 to 4. With 11 members voting, a 2/3 supermajority requires means eight votes; 3/4 requires nine.. A supermajority could be tough for Democrats to take – but better than keeping H

B2. American states mustered a supermajority to enshrine our nation’s Bill of Rights. Maybe supporters of “rights” in a local NDO could do the same.

Conclusion

A one-party fix to HB2 might not stop the NCAA boycott, and Republicans haven’t yet produced one. Democrats resist the Republicans’ plebiscite plan.

The main losers from a no-plebiscite compromise are folks who gain from HB2 via talk-radio ratings or fundraising campaigns.  Luckily, they’re outnumbered. But they are insidious. They’ve lured me into the kind of stone-throwing – at them – that I denounce when others do it. No one is righteous – as the Founders understood when writing rules to limit power.

An uncomfortable compromise is the best we can hope for from the Founders’ sunsets and supermajorities. But those techniques, or some other imperfect fix for HB2, can make things better – and bring back Basketball.

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I wrote the editor when I noticed the cuts:  “Obviously, this is not a deal-killer for me, but I’m curious about the cuts to the Founders piece — mostly about religion.  Do you all prefer steering clear of the minefield of religion and politics?  I put all that material in because some of the opposition to compromise is based on religious beliefs.”

She replied:  “No, not at all.  The bulk of the piece was about the options moving forward, rather than a moral/religious perspective on the ban. I felt the piece was stronger streamlined; the few paragraphs about righteousness here felt extraneous.  As far as religion in general, The Hill’s audience is primarily political rather than religious; we tend to focus on news having to do with Congress or the White House, as well as state issues such as this. That said, there are many times the two areas will intersect where we’d like to explore. Often a religious perspective on a non-religious issue will be of interest as well; it really depends on the subject.”

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Author: patoglesby

From 1982 to 1990, I worked in tax policy for Committees of the United States Congress. In recent years, I was Adjunct Lecturer at UNC-Chapel Hill's Business School and then Adjunct Professor at its Law School.

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