State Con Law Case of the Week: Ordinary Originalism in Delaware

Anthony Sanders · October 8, 2021

From all the fights about the “original meaning” of the U.S. Constitution—both whether original meaning should be central to constitutional interpretation and what that original meaning of various clauses actually is—you would think those battles replicate themselves when judges, scholars, and lawyers start talking about state constitutions. But, refreshingly, that’s generally not the case. State courts routinely reference the need to discover the original meaning of state constitutional provisions and also the high importance of what was said by the delegates to the constitutional convention that adopted the provision. (Whether the latter is a proper for “originalism” is a debate, but not one we need to have today.)

That “ordinary originalism” was on display in Delaware last week where its supreme court considered the meaning of Article II, Section 21 of its 1897 constitution, specifically the term “infamous crimes.” The case, Capriglione v. State ex rel. Jennings, concerned the political career of Michael Capriglione. Capriglione was formerly the police chief of the town of Newport (population just over 1,000). One day he backed his police vehicle into a pickup truck in the police department’s parking lot and then failed to report the accident. A couple days later he ordered a “reset” of the camera that recorded the incident, erasing the footage of his folly. But the news eventually came out anyway and he was criminally charged. This included a felony count of tampering with evidence. He and the prosecutor negotiated a plea deal, resulting in a conviction on misdemeanor counts of careless driving and official misconduct, but dismissal of the others, including the felony.

Despite the scandal, and like many politicians of our age, Capriglione was set to rise again, phoenix-like, into public office. He ran and won a seat as a town commissioner (topping the polls with 32 votes) and was elected in April of this year. But just before he was set to take the oath of office the Delaware Attorney General went to court to stop him. This was because of Article II, Section 21, which states: “No person who shall be convicted of embezzlement of the public money, bribery, perjury or other infamous crime, shall be eligible to a seat in either House of the General Assembly, or capable of holding any office of trust, honor or profit under this State.”

The question before the court was whether Capriglione’s conviction qualified as an “infamous crime,” thus baring him from office. To set the stage the court announced that its “task is to ascertain both the intent of the delegates to the Constitutional Convention of 1897 and the original public meaning of the language at issue.” Further, when those resources are not dispositive the court is to look to the state’s caselaw. This portion of the opinion was unanimous, and on a court that by law must have near-equal judges of both major political parties. So much for the controversy surrounding “original public meaning.”

The court then analyzed what “infamous crime” meant in 1897, including the remarks the delegates made at the convention and what the U.S. Supreme Court had said regarding the same term in the Fifth Amendment in the 1885 case Ex Parte Wilson. There the Court concluded that only felonies counted as “infamous” and therefore only those crimes required a grand jury indictment. Although this analysis indicated to the Delaware Supreme Court that “infamous crimes” seemed to only refer to felonies, especially in light of the other crimes enumerated in Section 21, the court concluded it was not dispositive. It therefore then looked to cases from Arkansas and Pennsylvania which determined that similar “infamous crimes” language did in fact refer to crimes that were misdemeanors. However, as they were issued several years before Ex Parte Wilson the court found them unpersuasive. Finally, although the court itself had not ruled on this question before, Delaware lower courts had, and it found those rulings buttressed a conclusion that “infamous crimes” under Section 21 can only be felonies. Thus, Mr. Capriglione could take his seat.

The court concluded with an interesting observation about the policy behind Section 21. The Attorney General had argued that “any conviction, given certain facts” can qualify as an “infamous crime.” But the court pointed out that when the delegates drafted the constitution in 1897 the state’s criminal statutes had less than 75 offenses. Today that has grown to more (perhaps far more) than 350, and other states and—most famously—the federal government have had even more explosive growth. The court even cited Justice Gorsuch’s recent book on that point, where he discusses this ballooning of criminalization. The court explained that “our modern tendency to sweep previously unregulated conduct into the criminal law’s purview would extend Section 21’s reach far more broadly than originally intended.” Perhaps this doesn’t apply to the parking lot foibles of police chief Capriglione, but for many others who might run for office in our over-criminalized times this seems exactly right. (See IJ’s work on this subject in the context of often long-past convictions preventing Americans from earning a living here.)

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