State Con Law Case of the Week: Old and New Original Meanings

Anthony Sanders · January 28, 2022

Today the Pennsylvania Commonwealth Court (the state’s intermediate court of appeals on public law topics) issued an opinion (McLinko v. Commonwealth) about the constitutionality of its mail-in voting law. This post is not at all about the merits of that decision. I simply wanted to highlight something the court said in its reasoning and how it is an example of a much bigger issue: The continuity, or non-continuity, of constitutional meaning across different constitutions.

The case involved various sections of the Pennsylvania Constitution relating to voting rights and absentee balloting. The provisions were adopted or at least tweaked in some way at various times in Pennsylvania’s history, including in 1838, 1864, 1874, 1949, 1957, 1967. And, over that period Pennsylvanians have been fairly active (when compared to many other states) with adopting new constitutions. The states held constitutional conventions and adopted new constitutions dated from 1776, 1790, 1838, 1874, and 1968. The court was therefore faced with a difficult interpretive conundrum—and one states with multiple state constitutions are often faced with—How should it interpret a provision in a constitution that was first drafted and adopted under a prior constitution but readopted into a later constitution?

This is particularly relevant if a court is concerned with the original meaning of a provision, that is, what the provision meant to the general public at the time it was adopted. What if the public meaning of a phrase meant X in 1790 but Y in 1968? Should a court use the 1968 meaning because the constitution was adopted at that time? Or should it use the 1790 meaning because the phrase itself hasn’t been changed since it was first adopted, and the fact that it was readopted in later constitutions without being changed means that its prior meaning was readopted?

These are not easy issues, to be sure. If you want to hear a bit more about the topic, Professor Jason Mazzone talks about research he and fellow scholar Cem Tecimer are working on in this video (at the 20 minute mark). They broadly call the issue “interconstitutionalism,” how past constitutions relate/inform more recent ones.

The Commonwealth Court somewhat dodged the issue in today’s case by stating that while Pennsylvania has adopted “new” constitutions over the years, really they were just updates. Quoting a treatise on the state constitution it said

[W]hat we call the “1968 Constitution” resulted from a process of incorporation of, and amendment to, our first Constitution of 1776. Conventions produced what have been designated as the Constitutions of 1790, 1838, 1874, and 1968, but these yearly “designations are for convenience only as the Constitution of Pennsylvania has been amended, not replaced and not readopted, by the proposals of the last four conventions.” . . . Simply, where language has been retained, this has been done advisedly in order to retain the original meaning.

(Emphasis by the court.) Thus, the court concluded, the original meaning of the various terms at issue has been the same throughout because it’s been the same constitution the whole time, just with bits and pieces added or subtracted here and there.

Without addressing the meaning of the underlying voting provisions involved in this case, I have something to say in response: Nice try, but this doesn’t work. These various conventions were not just amendments to the same constitution. The 1790 Constitution, for example, radically changed Pennsylvania’s state government. The 1776 Constitution was perhaps the best example of legislative supremacy in American history. The legislature was almost all powerful, with no independent executive branch, unicameral, and subject to annual elections. After this the state quickly grew tired of this abundance of democracy and the 1790 Constitution heavily cut back on legislative powers and created a more standard tripartite state government. Are we to think that was a mere “amendment” to the earlier constitution? That is not what the delegates to the state convention in 1789-90 seemed to think, and the same can be said of later conventions. A constitutional convention has long been understood to represent a kind of opportunity to break with the past, whatever label the delegates place on their new constitution. That is not to say some conventions don’t just amend (or propose amendments) to state constitutions—New York has done this a few times. But when delegates arrive at a constitutional convention they often have full authority to propose a whole new document to the voters, even if much of that document may look familiar.

Thus, I’m skeptical that this trick can get around the deeper, and very difficult, issue of what meaning counts for readopted constitutional text. Sometimes it might make sense that the older meaning is “carried forward,” especially if it’s a phrase that has been interpreted and people rely on that interpretation. But sometimes the public meaning of language really does change over time. For example, in their new book The Original Meaning of the Fourteenth Amendment: Its Letter and Spirit, Randy Barnett and Evan Bernick discuss how the original meaning of the Privileges and Immunities Clause of Article IV of the U.S. Constitution probably just represented what we today would call an equal protection guarantee between citizens of a state and visitors to that state. But by the 1860s the clause had come to be understood to have more of a fundamental rights guarantee, at least by Republicans in Congress. And those Republicans then drafted and, along with the state legislatures, adopted the Fourteenth Amendment and its Privileges or Immunities Clause. Thus, they make a strong case that the actual original meaning of the Privileges and Immunities Clause is less important to understanding the original meaning of the Privileges or Immunities Clause than the perceived original meaning of the “and” clause.

Further, to take a bit of an extreme example as a thought experiment, I once wrote that the “law of the land” clause found in many state constitutions should not be interpreted precisely the same way as what everyone recognizes as where the phrase was taken from, the Latin phrase legam terrae in Magna Carta. I argued no “originalist would argue this, and rightly so, given the differences in culture, history, etc., between thirteenth century England and the eighteenth and nineteenth-century United States.” You can be as originalist as any scholar and still recognize that when a new law is adopted—in this case a new state constitution—it doesn’t automatically import all of the meaning of the old law. Is the old law relevant to understanding the new one? Absolutely. But it’s still a new law.

“Interconstitutionalism” is a very underdeveloped area, particularly in state constitutional law. I look forward to further research that all of these scholars will have on the subject (which will be in addition to something I’m cooking up myself). The hand of past constitutions is a long, and important one, to be sure. But when new constitutions are adopted that should count for something too.

Anthony Sanders is the director of IJ’s Center for Judicial Engagement.

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