On Jan. 16, 2020, the Florida Supreme Court issued an advisory opinion interpreting Amendment 4, added to the Florida Constitution by voters in 2018, which restores voting rights of certain convicted felons “upon completion of all terms of sentence including parole or probation.” The court ruled that the phrase “all terms of sentence” includes fines, restitution, and fees ordered to be paid. Thus, felons can’t have their voting rights restored until they satisfy all conditions of the sentence, beyond doing the time.
On Jan. 21, a Tampa Bay Times editorial criticized the decision for “ignoring the voters’ clear intent.” It said that “even more concerning” was how the court reached its conclusion, adopting an “unbending embrace” of a judicial philosophy called “textualism” and citing the late U.S. Supreme Court Justice Antonin Scalia who “argued the courts should rigidly adhere to the narrow definition of the words — at the expense of what framers of the constitution meant or voters intended.” The Editorial Board called textualism a “pinched approach by conservatives.”
I don’t think the editorial board understands textualism very well. Textualism is neither rigid nor narrow. It is rather what Justice Scalia and co-author Brian Garner call, in their book, Reading Law, the “oldest and most commonsense interpretive principle.” It simply says that a judge, when faced with a statute (or here, an amendment), should begin and end with “what the text says and fairly implies.” This is not a pinched approach. Scalia rejected the idea that words must be “strictly construed,” quoting Justice Joseph Story for the proposition that words should be interpreted in their “natural and obvious” sense.
Textualism also is not necessarily conservative, but objective, accepting the contextual meaning that the words had when the law was enacted. That can cut either way, as Scalia pointed out on multiple occasions. Textualism is faithful to how the founders viewed the proper role of a judge. Thus, far from thwarting what the framers meant, the Florida Supreme Court rightly declared in its Amendment 4 decision: “The words of a governing text are of paramount concern, and what they convey, in their context, is what the text means.”
It is true that the court repudiated the suggestion made in prior decisions that the first step involves determining the “intent of the framers and voters,” rather than determining the objective language of the text. The court correctly noted that such pronouncements are “misleading” because they shift the focus from interpreting the text to “extraneous considerations.” The editorial lamented that the plain language of the Amendment may be contrary to what one perceives to be the “intent” of the drafters. But how does one know? Does one look to speeches, articles, or TV commercials by interest groups that drafted the amendment? Statements by lawyers seeking to defend the amendment during the approval process as the sole dissenting voice, Justice Jorge Labarga, believed? Because statements of “intent” inherently are ambiguous, they result in subjective determinations based on the policy preferences of the judges. That is not an act of impartial judgment but legislating from the bench.
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Here, the court used the tools of legal analysis — language and logic – to conclude that “all terms of sentence” had only one natural meaning — referring to all obligations, including monetary ones, not just prison time. Moreover, it applied no crabbed, literalistic method. The court emphasized that words are not construed in isolation, but in context, according to the logic of grammar. The advocates of restoring felons’ rights once incarceration ends, irrespective of whether the felon has paid restitution, argued that because the amendment mentioned “parole” and “probation” — two terms of specific duration — it illustrates what “all terms” of sentence must mean. But this isn’t right, the court responded, because the amendment says “all terms” must be completed, “including” parole and probation. “Including” is a term of expansion, not limitation.
The editorial got one thing right. The Supreme Court’s Amendment 4 advisory opinion is a landmark for constitutional and statutory construction in Florida. In one stroke, the Florida Supreme Court rejected “purposive” and “consequential” methods of statutory construction, which focus more on the “purpose” of the text or the “consequences” of the decision and allow judges to impose their own will on the text, choosing instead to anchor its judicial philosophy in the strong textualism of the late Justice Scalia. It may have been more hyperbole than truth when Justice Elena Kagan famously said, “we are all textualists now.” But the Florida Supreme Court signaled in its Amendment 4 opinion that a rigorous form of textualism now rules in Florida courts. And to my mind, that is a good thing.
D. Matthew Allen is a complex business litigation attorney in the Tampa office of Carlton Fields.