It would be an exaggeration to say that noted University of Virginia law professor A.E. Dick Howard wrote the current Constitution of the Commonwealth of Virginia, but not by much. He was the “executive director of the commission that wrote Virginia’s current constitution and directed the successful referendum campaign for its ratification,” making him, according to the Norfolk Virginian-Pilot, “the chief architect of the present Constitution of Virginia.”
Thus the Charlottesville Daily Progress’ recent interview with Howard over the meaning of one provision is of more than passing interest. How many constitutional law professors, after all, have played a leading role in drafting a constitution, steering it to adoption, and then been called on 48 years later to say what it means?
Given the increasing clamor for Governor Ralph Northam to resign (by Democrats, because he appeared in blackface at least once 35 years ago; by Republicans, because he defended allowing newborn survivors of attempted abortion being allowed to die in some circumstances) and his refusal, as I write, to do so, Article V, Section 16, of the Virginia Constitution is of considerable interest. It states, in part:
Whenever the Attorney General, the President pro tempore of the Senate, and the Speaker of the House of Delegates, or a majority of the total membership of the General Assembly, transmit to the Clerk of the Senate and the Clerk of the House of Delegates their written declaration that the Governor is unable to discharge the powers and duties of his office, the Lieutenant Governor shall immediately assume the powers and duties of the office as Acting Governor.
Exactly what, however, does “unable” mean in this context? In his Daily Progress interview, drafter/professor Howard argued:
[I]t was intended to deal with a governor’s physical or mental incapacity, not a loss of credibility.
…
“I think the obvious intention of Section 16 of Article 5 is to deal with incapacity — mental or physical,” Howard said Saturday in a phone interview. To argue that a governor “is unable to function because people are upset about something he did in the past seems to me to go beyond the natural intention of Section 16.”
This gloss, coming from an eminent constitutional law professor, is especially fascinating given the fact that perhaps the most influential trend in constitutional interpretation over the past decade or two has been the move to substitute an emphasis on “original meaning” for “original intent.” Original meaning, which relies on the generally understood meaning of the words in the text when it was drafted rather than the specific intentions of the drafters, Wikipedia concludes, is now “the dominant form of the legal theory of originalism.”
A simple way of illustrating this distinction, as I wrote here fifteen years ago, is to look at how to interpret the Eighth Amendment’s ban on cruel and unusual punishment. An original intent interpretation would insist that it prohibited the specific punishments that those who wrote and approved the Amendment had in mind as cruel and unusual. An original meaning interpretation, by contrast, would also rely on historical evidence, but rather than asking what punishments the framers (for lack of a better term) had in mind it would examine the contemporary understanding of the words “cruel” and “unusual.” On this view, a particular punishment might well be unconstitutional even though the framers never considered it, so long as it fell within an 18th Century (not our) understanding of what “cruel” and “unusual” mean.
Thus even if drafter/professor Howard is correct about his view and the view of others in 1971 that “the obvious intention of Section 16 of Article 5 is to deal with incapacity — mental or physical,” that doesn’t settle the matter. A governor’s inability “to discharge the powers and duties of his office,” in short, is not limited to what Professor Howard and his fellow drafters may have had in mind.
Professor Howard recognized as much when he admitted the following to the Daily Progress:
“[A] very broad definition” of the language about a governor’s inability to perform his duties “might be that he’s lost the credibility of his office in the state at large. I think that’s not consistent with what this section is about, but the language of the section itself doesn’t prevent those three officers from making a declaration that’s in effect, subjective — just their idea of why he’s not able to function.”
It is not at all clear, however, that “a very broad definition” of “unable” is required. The perfectly normal, everyday understanding of “unable” not only “doesn’t prevent” the interpretation that the three state officers are empowered to remove the governor; it positively includes that understanding.
Merriam-Webster, for example, defines unable as “incapable, such as unqualified, incompetent, impotent, helpless” and lists as its synonyms “inapt, incapable, incompetent, inept, inexpert, unfit, unfitted, unqualified, unskilled, unskillful.” Similarly, the dictionary that is included with my MacBook, based on the New Oxford American Dictionary, defines “unable” as “lacking the skill, means, or opportunity to do something,” and lists as synonyms “impotent, at a loss, inadequate, incompetent, unfit, unqualified, incapable.” There is no reason to believe “unable” meant something different, limited to physical or mental incapacity, in 1971.
I’ve only met Professor Howard once, years ago, when we shared a table at a large dinner given for the president of Mary Baldwin College. We had an interesting conversation, disagreeing about the then-controversial case of Schuette v. Coalition to Defend Affirmative Action By Any Means Necessary (discussed here; subsequently decided — correctly! — by the Supreme Court here).
Professor Howard has a distinguished reputation and is very highly thought of at the University of Virginia law school, but I think his original intent interpretation of the constitution he helped draft and steer to passage is far too narrow. If the Virginia attorney general, president pro tempore of the Senate, and the speaker of the House of Delegates conclude that Governor Northam is inadequate, inept, incompetent, unfit, unqualified, or incapable of performing his duties, they are perfectly empowered by Article V, Section 16, of the Virginia Constitution to remove him from office.
Because of other provisions of Section 16, that removal would not necessarily be final, but it would be a start.
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