Who knew a court with a conservative philosophy— favoring restraints on government power and judicial fiat— could have so much power? While no one was looking, the GOP-packed Georgia Supreme Court just reversed the results of both the American Revolution and the Civil War.
When the Georgia legislature passed a statute a few years back imposing potential criminal liability on doctors performing abortions, a group of Georgia OB-GYNs challenged the statute as unconstitutional. In a ruling that would have surprised John Marshall, the Georgia Supreme Court ruled recently that it is barred by the state’s sovereign immunity from reviewing the law for constitutionality.
The principal basis for that opinion was the constitution passed by Georgia’s legislature in 1861, the court ruled in a unanimous decision. How did the court arrive at that conclusion? It was a multi-step process.
First, the court looked at Georgia law on judicial review of statutes. Starting in 1865, there has been a clause in the Georgia Constitution that specifically says Georgia courts can void an act of the legislature that is unconstitutional, consistent with the landmark US Supreme Court decision, Marbury vs. Madison, in 1803.
End of story? Not so fast. According to the author of the Georgia Supreme Court decision, who claims to hold the same view of originalism as new U.S. Supreme Court Justice Neil Gorsuch, the court must look at a legal provision of law at its “initial inception” to get to the thinking of the originators of our laws who are long since dead.
Applying that standard, the first inception of the Judicial Review Clause, in Georgia’s Constitution of 1861, allowed courts to review “fundamental law,” and did not explicitly, in those exact words, authorize judicial review for constitutionality.
If you noticed the date, you may be able to guess the reason, at that time. There was no U.S. Constitution in the picture, no U.S. Supreme Court, because the Georgia Constitution of 1861 was adopted on March 23. Earlier that same year, Georgia seceded from the Union, on January 19, 1861.
So this year’s abortion law decision is based on Georgia’s Confederate Constitution adopted in the first sitting of Georgia’s Confederate legislature, back in the good old Confederate States of America.
In June of 2017, the Georgia Supreme Court gave precedence to Georgia’s Confederate Constitution over Marbury vs. Madison. Breaking news: Grant surrendered to Lee!
But the unanimous justices of the Georgia Supreme Court did not stop there. They tell us that the Confederate legislators, when they adopted the first judicial review clause in a Georgia constitution, could not possibly have contemplated that courts could declare a statute unconstitutional. They know that because Georgia did not pass its Declaratory Judgment Act, adding constitutional review to the statute books, until the 1940s. According to Georgia’s high court, that was not soon enough for the act authorizing declaratory judgments to be taken into consideration this year. The Confederate legislators never heard of it.
So Damn the Declaratory Judgment Act, full speed ahead!
Added for good measure, the court opinion in Georgia posited an unbroken connection to the common law in the days of King George III. Pretermitting the American Revolution, under English common law, the King could do no wrong. Under that theory, the state of Georgia has sovereign immunity and cannot be sued— even to challenge a statute as unconstitutional—without the state’s consent.
The Georgia court examined the legislature’s abortion restriction and found no provision in which the Legislature gave such consent to have its act reviewed. Sovereign immunity rules.
Never mind Chisolm vs. Georgia, another U.S. Supreme Court decision, decided in 1793 (let alone the intervening U.S. Constitution, that abolished royal prerogatives). In that case, the U.S. Supreme court majority held that sovereign immunity, as it was known at English common law, did not apply to bar a suit against the state of Georgia (for not paying its debts).
Since originalism is supposed to get at what people were thinking at the inception of the Constitution, those U.S. Supreme Court justices in 1793 clearly did not know what they were thinking back then. The error of their ways has now been corrected, over 200 years later, by the justices of the Georgia Supreme Court, with a little help from their Confederate ancestors.
As much as I appreciate their sticking to their conservative principles, and as much as I admire the genius and daring of Stonewall Jackson as a general, let’s keep them from erecting artificial legal barriers to our constitutional rights today.
Stephen Humphreys is an Athens attorney who once was a staffer for former U.S. Sen. Wyche Fowler, D-Georgia.