Here’s a letter of mine that was published in the Charlottesville Daily Progress about two weeks ago.
Opinion/Letter: Removing governor depends on Constitution’s words, not drafters’ intent
The Feb. 3 story published by The Daily Progress about a provision of the Virginia Constitution that empowers three state officials to oust a governor if they find that he “is unable to discharge the powers and duties of his office” cites University of Virginia law professor A.E. Dick Howard, described as “a principal architect of the modern Virginia Constitution,” arguing that that provision “was intended to deal with a governor’s physical or mental incapacity, not a loss of credibility,” according to the story’s paraphrase of his remarks.
But the intention of the drafters of a constitutional provision does not, alone, determine its meaning.
Perhaps the most influential trend in constitutional interpretation has been the move to substitute an emphasis on “original meaning” for “original intent.” Original meaning relies on the generally understood meaning of the words in the text when it was drafted rather than the specific intentions of the drafters. For example, an original-intent interpretation of the 8th Amendment’s ban on cruel and unusual punishment would insist that it prohibited only the specific punishments the drafters had in mind. An original meaning interpretation, by contrast, would examine the contemporary understanding of the words “cruel” and “unusual.”
Professor Howard acknowledged that “a very broad definition” of the language in Article V, Section 16 might support removing a governor for reasons other than physical or mental incapacity, but a strong argument can be made that a “broad definition” is not needed, that his own view is far too narrow an interpretation of the meaning of “unable.”
Merriam-Webster, for example, defines unable as “incapable, such as unqualified, incompetent, impotent, helpless” and lists as its synonyms “inapt, incapable, incompetent, inept, inexpert, unfit, unfitted, unqualified, unskilled, unskillful.”
There is no reason to believe “unable” meant something different, limited to physical or mental incapacity, in 1971.
Thus, if the Virginia attorney general, president pro tempore of the Senate, and the speaker of the House of Delegates conclude that Gov. Ralph Northam is inadequate, inept, incompetent, unfit, unqualified, or incapable of performing his duties, they are perfectly empowered by Article V, Section 16 of the Virginia Constitution to remove him from office.
Because of other provisions of Section 16, that removal would not necessarily be final, but it would be a start.
John S. Rosenberg, Albemarle County
And here is a letter of mine that the Richmond Times Dispatch, in its wisdom, failed to publish.
To the editor:
Here’s a compromise deal that would resolve the mess Virginia Democrats have made. Gov. Northam, Lt. Gov. Fairfax, and possibly Attorney General would resign but be replaced by Democrats, with the acquiescence of Republicans.
Here’s the deal: in return for the resignations of Governor Northam, Lt. Gov. Fairfax, and Attorney General Herring:
1. Kirk Cox, the Republican Speaker of the House of Delegates, and Stephen Newman, Republican President Pro Tempore of the Senate, resign.2. Republican delegates join Democrats and elect David Toscano, now the Minority Leader, as the new Speaker and Dick Saslaw, now Senate minority leader, as the new President Pro Tempore.3. Northam, Fairfax, and Herring resign.4. Upon their resignations, Toscano becomes new governor, Saslaw becomes new Lt. Gov., and the new AG is chosen by the General Assembly, in which the Republicans would agree to vote with the Democrats.5. The recently elected Democratic Speaker and President Pro Tempore resign. Kirk Cox is elected again to be Speaker and Stephen Newman to be President Pro Tempore.
It would be hard for Republicans to sacrifice the pleasure they no doubt feel watching the Democrats continue to stew in the juices of their hypocrisy (zero tolerance for #MeToo offenses and racial slights … unless sticking to those principles helps Republicans), but the above compromise would leave them in no worse shape than they have been in since the last election, and it would have the enormous benefit of being good for the Commonwealth.
It would also be good for the Republicans, since their willingness to forego partisan gamesmanship in favor of the general good would certainly help them in the upcoming November 2019 election that will determine control of the state Senate and House of Delegates, in both of which they now have only a two-vote majority.