Giving Meaning to Georgia’s ‘Social Status’ Clause

What happens if a state adopts a new constitution but leaves an earlier provision’s language unchanged? Should we view the provision the same or differently the second time around? What time period do we look to for the “original meaning”? What do we do with court cases interpreting the old constitution? Are they still precedent?

These questions loomed in a recent Georgia Supreme Court decision, Session v. State, which illustrates some of the challenging interpretive issues that come up in states that have cycled through multiple constitutions. It also showcases a unique and underappreciated constitutional provision: Georgia’s “Social Status” Clause.

Session concerns a man who was convicted of sexual battery of a child in Louisiana in 1995 and served almost 10 years in prison. Upon moving to Georgia, he registered as a sex offender but then was found not to be living at the address he provided. For this paperwork violation, he received a 20-year sentence, although it was suspended. On appeal, he made a number of arguments, including that his sentence violated Georgia’s Reconstruction-era Social Status Clause.

Georgia has had (depending on how you count them) 10 or 11 constitutions. One that stands out is its 1868 constitution. Adopted pursuant to Congress’s requirements for readmission to the Union, many of its delegates tried to address the continuing subjugation of Black Americans in the post-war South. This sentiment was by no means universal at the convention, however, even though many Georgians could not participate due to their disloyalty to the Union. The resulting constitution did not contain what we today would call an equal protection guarantee. But it did say, “The social status of a citizen shall never be the subject of legislation.”

A modern reader might think this provision was meant to prohibit legal segregation, with the infamous Black Codes in mind. However, in 1869, the Georgia Supreme Court quickly dispatched with that argument. That year, the court heard the appeal of a Black woman who was prosecuted under the state’s miscegenation law. She raised the clause as a defense, but the court swatted her argument away, asserting that the clause actually froze legal segregation in place, “prohibit[ing] the enactment of any new laws on that subject in [the] future.” That precedent has never been overturned.

In Session, the defendant argued that the Georgia Supreme Court’s 1869 reading was wrong and that instead, the clause prohibits the legislature “from creating preferred or reviled classes of citizens.” That reading certainly seems like it would nullify legal racial segregation. But the court concluded that even if this were its proper reading, it could not mean that sex offenders could not be categorized. Although the court didn’t put it this way, it seems it needed a limiting principle so the clause would stop short of outright prohibiting criminal convictions for any crime — which, after all, do create “social status” in one sense. Because the defendant wouldn’t prevail even under his proposed standard, the court left the 1869 case untouched. It did state, however, that any reliance on that precedent would likely violate the 14th Amendment.

If the Social Status Clause were interpreted anew, it could apply in all kinds of interesting ways. It could deter not just race and gender discrimination, but perhaps unreasonable bars to people with past convictions reentering society or zoning laws that prohibit some — but not other — property owners from providing housing. For more, Atlanta attorney Andrew Fleishman has given some additional thoughts.

Where did the Social Status Clause come from? Despite a look through the convention transcript, I did not learn much. Interestingly, though, in the first draft of the state’s new Declaration of Rights, it was nestled between search-and-seizure language. Was it perhaps pointed at privacy rights, attacking restrictions such as those very miscegenation laws upheld by the state’s high court the next year?

At this point, it may not matter much. Or does it? Since 1868, Georgia has gone through four more constitutions, most recently in 1983. The clause has never materially changed. But the meaning of “social status” probably has. If we’re being at least somewhat “originalist” (as today’s Georgia Supreme Court says it is), do we look to the meaning in 1868 or 1983?

The court has actually had to deal with this question a lot, given its constitutional history. And it essentially says an old precedent’s interpretation is presumptively understood to carry through, although that can be rebutted. This is a problem called “interconstitutionalism” in a recent fascinating article by Jason Mazzone and Cem Tecimer.

Whatever happens, “social status” rights in Georgia are up for grabs for any enterprising social (and legal) climbers.

Anthony Sanders is the director of the Center for Judicial Engagement at the Institute for Justice and the author of the forthcoming book Baby Ninth Amendments: How Americans Embraced Unenumerated Rights and Why It Matters.