Opinion Analysis: Elliot v. State and Reinvigorating the Georgia Constitution

Last month the Court held that the State cannot use a suspect's refusal to submit to a breath test as evidence of guilt in a criminal trial for Driving Under the Influence.  Elliot v. State, 2019 WL 654178, -- S.E.2d ---- (Ga. 2018). So far as that holding goes, the decision may have only a modest impact; the refusal is rarely the only available evidence of guilt, and it seems unlikely that a large number of suspected drunk drivers will refuse to take the breath test (given that the refusal carries a statutorily mandated revocation of one's drivers license for a year). 

The real upshot of the decision is that the Court is breathing new life into the Georgia Constitution. Starting with Olevik v. State, 302 Ga. 228 (2017), the Court has begun to re-emphasize that the State Constitution is not coextensive with the Federal Constitution, and has shown a willingness to interpret their relative text and history as leading to different results. Under Elliot, for example, Article I, Section I, Paragraph XVI of the Georgia Constitution gives defendants suspected of DUI protection that the Fifth Amendment to the Federal Constitution does not. What Elliot makes clear, therefore, is that it is time for the practicing bar in Georgia to start learning the language of constitutional federalism.

To that end, there are three important principles of Georgia Constitutional Interpretation to take away from Elliot: (1) original public meaning, (2) the presumption of constitutional continuity, and (3) the federal constitution's place within persuasive authority.

"Original Public Meaning"

The first and most important principle is that the court "interpret[s] the Georgia Constitution according to its original public meaning." Elliot, 2019 WL 654178 at *2. The reason for this, the Court has explained, is that “the Constitution, like every other instrument made by men, is to be construed in the sense in which it was understood by the makers of it at the time when they made it. To deny this is to insist that a fraud shall be perpetrated upon those makers or upon some of them.” See Padelford, Fay & Co. v. Mayor and Alderman of City of Savannah, 14 Ga. 438, 454 (1854). Unlike other forms of interpretation, the focal point of "original public meaning" is not the intent of the drafters 
"[s]ince the people are the ultimate 'makers' of the Georgia Constitution" in the sense that they elect the drafters of the document, and must ratify the proposed Constitution. (emphasis added) See Elliot, 2019 WL 654178 at *3 n.4 (citing Olevik, 302 Ga. at 237-239).
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Presumption of Constitutional Continuity

Today, of course, "the Georgia Constitution that we interpret . . . is the Constitution of 1983; the original public meaning of that Constitution is the public meaning it had at the time of  its ratification in 1982." Elliot, 2019 WL 654178 at *2. But the Elliot Court emphasized "many of the provisions of the Constitution of 1983 first originated in an earlier Georgia constitution . . .  [t]he meanings of those previous provisions is critical to understanding the meaning they carried at the time they were readopted." Id. 

This reality is the basis for the second principle of Georgia constitutional interpretation, the presumption of constitutional continuity. “A constitutional provision must be presumed to have been framed and adopted in the light and understanding of prior and existing laws and with reference to them. Constitutions, like statutes, are properly to be expounded in the light of conditions existing at the time of their adoption.” Clarke v. Johnson, 199 Ga. 163, 166 (33 SE2d 425) (1945). The Court therefore presumes "that a constitutional provision retained from a previous constitution without material change has retained the original public meaning that provision had at the time it first entered a Georgia Constitution, absent some indication to the contrary." (emphasis added) See Elliot, 2019 WL 654178 at *3 (citing cases). 

Similarly, "[a] constitutional clause that is readopted into a new constitution and that has received a consistent and definitive construction is presumed to carry the same meaning as that consistent construction." Id. at *3-4; see also McKnight v. City of Decatur, 200 Ga. 611, 616  (1946) (“[t]he framers of the revised Constitution [of 1945] were presumably cognizant of the foregoing provisions of the earlier Constitutions [of 1868 and 1877, as amended in 1919], and of the interpretations which this court had placed upon them”) (emphasis added).

Thus, the principle of constitutional continuity embraces two presumptions: first, that a re-adopted constitutional provision carries forward the original public meaning from the time which it initially adopted, as opposed to a possible public meaning at the time of re-adoption; and second, that a re-adopted constitutional provision which has received consistent construction carries with it the construction it received under prior versions of the Constitution.

A federal constitutional provision is only persuasive where it shares text or history with Georgia

The third principle of Georgia Constitutional interpretation is, succinctly, that the Federal Constitution and our State Constitution are two different documents. As such, "Georgia constitutional provisions may confer greater, fewer, or the same rights as similar provisions of the United States Constitution, and decisions of the United States Supreme Court interpreting those similar provisions are persuasive in our interpretation of the Georgia Constitution only to the extent that those decisions are rooted in shared history, language, and context." Elliot,  2019 WL 654178 at *5 . While the court must "faithfully apply the decisions of the United States Supreme Court as to the meaning of that [federal] provision," the Court "owe[s] those federal decisions no obedience when interpreting our own Constitution." Id.

The Court emphasized in Elliot that state constitutional rights were “meant to be and remain genuine guarantees against misuse of the state’s governmental powers, truly independent of the rising and falling tides of federal case law both in method and in specifics.” Id. at 6 (citing State v. Kennedy, 666 P2d 1316, 1323 (Or. 1983)). Thus, “[s]tate constitutional provisions may . . .  confer greater protections than their federal counterparts, provided that such broader scope is rooted in the language, history, and context of the state provision. In the same way, a state constitution may also offer less rights than federal law, so long as it does not affirmatively violate federal law.” Id.

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Olevik and Elliot lay out an important lesson: the Georgia Constitution is alive and well, and litigants would be wise to consider its history and text separate apart from their federal counterparts. These three principles: original public meaning, continuity, and limited persuasiveness of federal decisions, are the key tools to be used in litigating the meaning of the Georgia Constitution. 

Related materials

Elliot v. State, https://www.gasupreme.us/wp-content/uploads/2019/02/s18a1204.pdf

On Constitutional Federalism

• See generally Jeffrey S. Sutton, 51 Imperfect Solutions: States and the Making of American Constitutional Law 174-178 (2018).

The Georgia Constitution 

• A Treatise on the Constitution of Georgia (Atlanta: Harrison Co., 1912)

Presumption of Constitutional Continuity 

• Lathrop v. Deal, 301 Ga. 408, 428-432 (III) (B) (801 SE2d 867) (2017) 
• Ga. Motor Trucking Assn. v. Ga. Dept. of Revenue, 301 Ga. 354, 366 (2) (B) (801 SE2d 9) (2017) (interpreting provision of Constitution of 1983 in the light of the meaning of amendments to the Constitution of 1945 that were carried forward)
• Smith v. Baptiste, 287 Ga. 23, 24-28 (1)
• Nelms v. Georgian Manor Condo. Assn., 253 Ga. 410, 413
• Bloomfield v. Liggett & Myers, Inc., 230 Ga. 484, 484-485 (198 SE2d 144) (1973)
• State v. Cent. of GaR. Co., 109 Ga. 716, 727-728 (35 SE 37) (1900)

Consistent Construction is Carried Forward by Readopting Construed Text

• Thompson v. Talmadge, 201 Ga. 867, 885 (2)
• Atlanta Indep. Sch. 11 Sys. v. Lane, 266 Ga. 657, 658 (2)
• City of Thomaston v. Bridges, 264 Ga. 4, 6 (439 SE2d 906) (1994); 
• Toombs County v. O’Neal, 254 Ga. 390, 391-392 (2) (330 SE2d 95) (1985); 
• Aldrich v. State, 220 Ga. 132, 135 (137 SE2d 463) (1964); 
• Hancock, 211 Ga. at 432 (1); 
• Griffin v. Vandegriff, 205 Ga. 288, 293 (53 SE2d 345) (1949); 
• McCafferty v. Med. Coll. of Ga., 249 Ga. 62, 70 (287 SE2d 171) (1982) (Gregory, J., concurring specially), overruled on other grounds by Self v. City of Atlanta, 259 Ga. 78, 79 (1) (377 SE2d 674) (1989)