Chief justice focuses on fundamental rights in 250th anniversary year

Paul Newby speaks at Carolina Liberty Conference — Carolina Journal photo by Sydney Cook

A recent trip to Ukraine helped remind North Carolina Supreme Court Chief Justice Paul Newby about the importance of protecting Americans’ fundamental rights. Newby shared his thoughts about those rights Saturday during a presentation for the John Locke Foundation’s Carolina Liberty Conference.

Newby has served on North Carolina’s highest court since 2004 and has served as its chief justice since 2021. He met during early February with the “upper echelon” of Ukraine’s judicial branch. He learned about the judges’ personal challenges: “four hours of electricity a day — maybe some heat, maybe not.”

Newby saw photos of courthouses “that they’re trying to keep open.” “You had all the employees there dressed in all of their winter best — multiple layers, trying to stay warm,” he recalled. On one day during the trip, a Russian drone struck a Ukrainian power plant 20 miles from his hotel. Temperatures topped out in the teens.

“But, you know, I was able to engage with them on a very deep level about the meaning of independence and freedom,” Newby said.

“Our state constitution reminds us since 1776 — 250 years we’ve had this concept — ‘a frequent recurrence to fundamental principles is absolutely necessary to preserve the blessings of liberty,’” Newby said, citing Article I, Section 35 of the state Declaration of Rights.

“The judges in the Ukraine were very interested in the fundamental concepts that I maintained that we shared as judges,” the chief justice added. “That is, our rights come from God. They don’t come from a government or a constitution or the people who are in power. This was very reassuring to them.”

Looking back at the American Revolution, Newby noted that the conflict was about more than the idea that the British king had broken his “covenant” with the people: providing protection in return for loyalty.

“The concept that was in question is: Does the king have the authority to tell people what their rights are,” the chief justice said. “For 99% of the history of the world, that’s what it had been. People in power tell those that are under them: These are your rights, and if you disagree you die.”

“If our rights don’t come from each other, what is the source of that right?” Newby asked. “[Thomas} Jefferson famously said it in his Declaration of Independence: that we hold these truths to be self-evident, that all of us are created equal, endowed by our Creator with certain unalienable rights — life, liberty, pursuit of happiness.”

In 1868, five years after President Abraham Lincoln’s Gettysburg Address reminded Americans that the nation had been “conceived in liberty,” North Carolinians “had an opportunity to reassess who we are as a people — what these rights are really all about and how do we protect these rights,” Newby said.

Revisions to the state constitution after the Civil War included a “tweak” of Jefferson’s words. “We added that everybody is entitled to their fruits of their own labor,” Newby said. That addition recognized the dignity of work and a fundamental right to pursue the jobs we do.

The preamble of that new constitution began: “We the people of the state of North Carolina, grateful to almighty God, the sovereign ruler of nations, for the preservation of the American union and the existence of our civil, political, and religious liberties.”

“I hope we listen and understand those words, maybe even think about them more deeply,” Newby added.

Government exists “to protect these fundamental rights and freedoms,” the chief justice said.

Law schools teach future lawyers about bundles of rights. People turn some of those rights over to government. “But every time the government acts, what happens to your rights?” Newby asked. “They become less.”

Since 9/11, people traveling through American airports have allowed themselves to undergo “one of the most invasive searches imaginable without probable cause,” the chief justice said. “We’ve traded off our liberty for security.”

“I’m not saying that’s a bad trade-off, but what hurts me is to be in that snake line … to have this invasive search … I don’t think anybody’s thinking about it,” Newby said. “I don’t think anybody’s thinking about, ‘You know, I traded this off for security, but doggone it, one day — Lord willing — these security threats are going to go away and I’m going to get my freedom back. … It’s so hard to reclaim that once we lose it.”

The chief justice’s conversations with Ukrainian counterparts reminded him of the importance of the American common-law system with juries. “We take power from judges and give it to we the people,” Newby said. “Folks, that is a huge, huge safeguard of your freedoms and liberties.”

A Chinese judge once questioned Newby about the higher cost and inefficiency of the American legal system. “I get it,” Newby responded. “I understand we will lose to you in efficiency every time. … But I’m going to take our inefficient jury system and the freedoms that are protected by that.”

Looking at the “miracle of America” and the events of 1776, Newby turned his attention to the 250th anniversary of North Carolina’s Battle of Moores Creek Bridge. Patriots won the short conflict, losing one man. John Grady, a “subsistence farmer, from what we can tell,” hailed from the Duplin County area.

“Why did he answer that call? What stake did he have in this other than he loved freedom?” Newby asked. Grady had seen royal governors ignoring the people’s assemblies. “He went to defend our state.”

The Patriots’ success at Moores Creek drove the British from North Carolina. “That information certainly was processed” by North Carolina leaders meeting in Halifax, Newby said. Less than two months after the battle, they produced the Halifax Resolves of April 12, 1776. “We were the first state to ask our members of the Continental Congress to declare independence.”

With roughly one-third of North Carolinians supporting the Patriot cause, another third supporting the king, and the final third wondering which side would win, “it took incredible courage” to stand against the British crown, Newby said. “They so loved their God-given freedoms and liberties, they said, ‘We want this independence.’”

While the nation would have to wait until 1787 for the completion of the US Constitution we know today, 1776 also marked the year of the first North Carolina Constitution.

Newby stressed the emphasis that constitution’s drafters placed on fundamental rights, separate from the structure of a new North Carolina government.

“They said we are first going to vote on our Declaration of Rights. Now why is that? Because our rights come from God,” he said.

A day after voting on safeguarding basic rights, the same group approved the new government’s structural rules. “The government exists to protect those fundamental rights and freedoms,” Newby explained. “They said we want to emphasize this by symbolically making our structure of government a day younger than our adoption of our Declaration of Rights.”

“This idea of protecting our fundamental freedoms is why North Carolina is 12th in ratifying our federal Constitution,” Newby added.

As a young student, Newby wondered why North Carolina had been so slow among the new 13 American states to adopt the federal governing document. “This is not good, is it? It is good. We were principled,” he said.

“Even though 11 other states have ratified and you have this country going, we will not ratify unless there is a Bill of Rights,” Newby said of the North Carolina leaders’ stance during constitutional ratification debates. Ratification came shortly after the first Congress proposed the set of amendments that became the Bill of Rights.

Ukrainians have enjoyed sovereignty since 1993, “after enduring the Nazis, after enduring the communists, and now to be back in this [war with Russia]. It made me so much more appreciate what by God’s grace I was born into here in North Carolina, here in the United States of America,” the chief justice said.

“Chief justice focuses on fundamental rights in 250th anniversary year” was originally published on www.carolinajournal.com.