When words have no meaning

FIRST PRINCIPLES

The United States prides itself, quite rightly, on its adherence to the rule of law. Our body politic is, after all, "a government of laws and not of men," or so John Adams famously wrote of the Massachusetts Constitution of 1780. That ideal has some notable exceptions, of course, manifested at various critical junctures of our nation's history. But those exceptions did not make the claim that the raw dictates of man were to prevail over the rule of law; rather, they were rooted in the idea that there is a higher law that must inform even the government of laws. Abraham Lincoln, for example, implicitly appealed to the higher law of self-preservation when, in defense of his (arguably unconstitutional) decision to suspend the writ of habeas corpus without Congress' prior approval, he famously asked: "Are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated?" And Martin Luther King Jr. argued persuasively in his "Letter from the Birmingham Jail" that breaking an unjust law "in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for law."

The challenges to the rule of law today are of a radically different sort. Increasingly, legislatures are taking it upon themselves to rewrite the very meaning of words in order to achieve a desired outcome that is manifestly contrary to the law as written. A couple of such stories are playing out in California right now.

Ever since California's first constitution in 1849, California's citizens have disenfranchised those "convicted of any infamous crime" - that is, of felonies. Article II, Section 4 of the California Constitution, adopted by voter initiative in 1974, loosened the permanent ban on voting by felons but still prohibits voting by those who are "imprisoned or on parole for the conviction of a felony." In 2011, in response to court orders mandating that the state alleviate alleged overcrowding in its state prison system, the California Legislature passed a "realignment" statute, shifting a number of felons from the state prison system to the county jail system but otherwise leaving in place the "felony" status of their crimes. The bill also realigned responsibility from state corrections officials to local officials for the supervision of paroled felons moved to the county jail system, calling the county system "post release community supervision." Then-Secretary of State Debra Bowen issued a guidance memorandum to county elections officials explaining the common-sense understanding that felons on "post release community supervision" were still barred from voting by Article II, Section 4 of the state constitution, because they were "on parole for the conviction of a felony," despite the different nomenclature used by the Legislature.

After an effort to codify in state law that "post release community supervision" was not "parole" failed in the state Legislature, the ACLU brought suit against Secretary Bowen to accomplish the same end through litigation. In May 2014, Judge Evelio Grillo of the Alameda County Superior Court obliged. Despite clear dictionary definitions defining "parole" as it is generally understood (i.e., the release of a prisoner before his or her term as expired on condition of continued good behavior), Judge Grillo held that felons given early release from county jails into the "post release community supervision" program were not actually felons on parole. Ergo, they must be allowed to register to vote.

To her credit, Secretary Bowen appealed that counter-intuitive holding, but her successor in office, Alex Padilla, settled the case and withdrew the appeal, rendering roughly 45,000 convicted felons who were still on supervised release eligible to vote in the last election despite the state constitution's ban.

As if that is not bad enough, the state Legislature passed a bill last August that excises from the state constitution's prohibition the "imprisoned" component of the felon voting ban as well. Assembly Bill 2466, introduced in February 2016 by Assemblywoman Shirley Weber (and sponsored by the ACLU), manipulates the obvious definition of "imprisoned ... for the conviction of a felony" (emphasis in original) to cover only those sent to state prison, not those convicted of felonies who are transferred to or initially sent to county jail under the statutory realignment law. The bill barely passed the Assembly by a 41-37 vote in May 2016, but passed the Senate by a 23-13 vote in August and was signed by Gov. Jerry Brown in late September. Apparently, a majority of the Assembly, and a large majority of the Senate, and the governor himself all think the word "imprisoned" refers not to someone who is incarcerated (as ordinary folk would believe), but to the name on the building in which they are incarcerated - state prison instead of county jail. Words no longer seem to have any meaning. Or, as Humpty Dumpty would say, "When I use a word, it means just what I choose it to mean - neither more nor less." Can anyone seriously contend that when the people of California voted to ban voting by those "imprisoned or on parole for the conviction of a felony," they really meant to allow voting by convicted felons while they were still in jail.

Another example is currently pending in the courts. Back in 1988, the people of California, exercising their initiative power, adopted Proposition 73, the "Campaign Funding, Contribution Limits, Prohibition of Public Funding Initiative Statute." As the proposition's title reflects, the initiative's text unambiguously provides that "No public officer shall expend and no candidate shall accept any public moneys for the purpose of seeking elective office." No matter. The California Legislature passed a law this past year that specifically allows what Prop. 73 forbids - public financing of political campaigns. Section 2 of Senate Bill 1107, approved by the Legislature last August and signed into law by Gov. Brown in September, replaced the initiative's statutory language with the following: "A public officer or candidate may expend or accept public moneys for the purpose of seeking elective office if the state or a local governmental entity establishes a dedicated fund for this purpose by statute, ordinance, resolution, or charter."

The Legislature's argument for this bald-faced violation of the law? The original Prop. 73 (in a provision subsequently repealed) also allowed for legislative amendment if the amendment "further[s]" the "purposes" of the initiative. Because the "purpose" of the original proposition, according to legislative counsel, was to correct election abuses in California, eliminating "the absolute prohibition on public campaign financing" to allow for such public financing (and by euphemistically calling it "citizen-funded election programs") was, according to the Legislature, in furtherance of the proposition's purpose. Again, words have no meaning. The thing that was "absolutely prohibit[ed]" is now permitted.

The danger here is much broader than whether felons still on parole can vote, or whether public officials can tap the public fisc for their re-election campaigns. When Legislatures can so easily ignore constitutional provisions and initiative statutes simply by "redefining" the meaning of words, we no longer live under a government of laws, but are rather subject to the raw exercise of will by men.

Abraham Lincoln raised a cautionary red flag about that as well: "if the laws be continually despised and disregarded ... the alienation of [the people's] affections from the Government is the natural consequence; and to that, sooner or later, it must come."