A “Keg of Worms” of Original Meaning

Anthony Sanders · November 5, 2022

Today for the State Con Law Case of the Week we once again travel down to Georgia (well, actually we’re just going to stay there as we looked at a Georgia case just last week). On November 2, 2022 the state supreme court addressed an issue we’ve written about here before: The Georgia Constitution’s expansive protection of the right to not testify against yourself. In the process it also discussed another issue we’ve written about on this blog: What “original meaning” controls when a state has had more than one constitution but the language from the earlier constitution is unchanged in the current one?

Testimony and “testimony”

Ammons v. State concerned a DUI defendant’s refusal to submit to an “alco-sensor” test (a test of someone’s breath for the presence of alcohol) and perform field sobriety checks during a roadside stop, plus her refusal to submit to a warrantless blood draw later. Under federal law, as it’s been interpreted, the defendant would be out of luck for the breath test and sobriety checks. The Fifth Amendment’s right against self incrimination, as interpreted, only concerns verbal testimony. The language is “No person . . . shall be compelled in any criminal case to be a witness against himself.” Here the federal courts have said “testimony” does not mean being compelled to act in certain ways, such as standing in a lineup. Thus, if a person simply refuses to perform those acts that refusal can be used against her. (It’s also said the Fourth Amendment isn’t much help either, but that’s a different story.)

Now, Georgia’s equivalent provision is written differently. Article I, Paragraph XVI says “No person shall be compelled to give testimony tending in any manner to be self-incriminating.” The language has been in various Georgia constitutions since 1877, and only modified slightly in and nonsubstantively. (Before 1983 it ended in the archaic phrase “to criminate himself.”) Comparing it to the Fifth Amendment, the “in any manner” seems more expansive. But the root thing being protected is arguably narrower. Instead of preventing someone from forcibly being “a witness” against oneself, Georgia’s version just bars “testimony.”

Yet, since 1879 the Georgia Supreme Court has interpreted the language to bar self-incrimination beyond just standard “testimony.” As we discussed in the previous post, the language has been interpreted to prevent acts such as forcibly making a defendant give a sample of their footprint and (in the case Awad v. State from earlier this year) submitting to a urine test. This case, Ammons, was a bit different because a case from a couple decades ago indicated that breath tests weren’t protected by the Georgia Constitution. The case did not even mention Article XVI and only made that statement in passing, so it arguably wasn’t even a holding. Nevertheless, the majority in Ammons cleared up any confusion by overruling that statement and clarifying that Article XVI protects against forcibly submitting to a breath test, and roadside sobriety tests too.

Text, history, or text plus history?

Ammons’s application of the expansive meaning of Article XVI to these matters was not really news. What was news was the State explicitly asked the court to overturn this entire line of caselaw. The majority rejected this invitation, but the dissent wanted to take the State up on it.

I won’t give much of an overview of the arguments for and against here, but if you’re interested in issues of originalism, textualism, and “interconstitutionalism,” both opinions are a great read. Essentially, the State and dissent argue that “testimony” in Paragraph XVI and its various predecessors in past Georgia constitutions has always meant just verbal testimony and has been wrongly interpreted since 1879. And, when the people of Georgia adopted their present constitution in 1983, “testimony” meant the same thing, and we should defer to the original meaning of 1983—that is how ordinary people would interpret that word in 1983—and not the specialized, non-obvious, meaning that the Georgia courts have come up with over the years.

In response the majority said that that was not how the drafters of the 1983 constitution saw things and it wouldn’t make sense to reject the established legal meaning of the time. The majority quotes statements from various committee meetings during the drafting of the 1983 constitution where members said that if they tinkered with the language of a past constitutional provision then that could change its meaning, but if they didn’t want a change—such as to stop having “testimony” include non-verbal acts—then they should deliberately leave things alone.

To give just one example, one person said it would “open a keg of worms” if they changed the constitution’s double-jeopardy provision. Since they didn’t want to change its meaning, they left it the same.

Given the long-accepted application of the self-incrimination provision, argued the majority, the same should be assumed to be true there. Thus, perhaps on its own the original meaning of the mere text in 1983 (or 1877, or any constitution in-between) wouldn’t include non-verbal acts, but given that long-accepted understanding the “original meaning” of 1983 should be controlled by that history. Although the majority doesn’t say this, another way of thinking about it would be that the provision is a “term of art.”

Privileges or immunities for another day

Ms. Ammons didn’t completely win her appeal, though. She also argued that the Georgia statutes that allow her refusal to submit to a blood draw to be used against her to be unconstitutional. One of her arguments was made under Georgia’s Privileges or Immunities Clause. The court rejected her argument, but was careful not to say anything more or foreclose future claims on other issues. The court also compared the provision to the Fourteenth Amendment’s Privileges or Immunities Clause, which makes for some interesting reading. It also hinted that it shouldn’t follow the U.S. Supreme Court’s interpretation of “privileges or immunities” (such as in the infamous Slaughterhouse Cases) in interpreting Georgia’s own language. Thus, this might portend of interesting developments in the future.

Anthony Sanders is the Director of the Center for Judicial Engagement at the Institute for Justice.