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When Can a Virginia Governor Be Removed From Office?

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.