(Associated Press/Susan Walsh)

The U.S. Supreme Court has held that the Fifth Amendment bars the government from requiring criminal defendants to testify against themselves, but it has upheld requirements that people provide physical evidence, such as through drunken-driving breathalyzer tests. In the words of Justice Brennan’s Schermber v. California (1996) majority opinion,

[T]he [Fifth Amendment] privilege [against self-incrimination] is a bar against compelling “communications” or “testimony,” but that compulsion which makes a suspect or accused the source of “real or physical evidence” does not violate it.

But in today’s Olevik v. State decision, the Georgia Supreme Court has held that the Georgia Constitution’s privilege against self-incrimination is more protective, and that people cannot be forced to incriminate themselves via normal breathalyzer tests. Indeed, the court overruled a 2000 Georgia Supreme Court that had allowed such compulsion. (The refusal to take such a test may still lead to civil remedies, such as loss of a license, but that’s a different matter, because the privilege applies only to criminal cases.)

And this is especially noteworthy, I think, because the court is generally viewed as a conservative court, two-thirds of whose members (6 out of 9) have been appointed by Republican governors — not the sort of court that you would expect to read criminal procedure rules in a more pro-criminal-defendant way than Justice Brennan did in the heyday of the Warren Court. Yet the court’s rationale fit traditional conservative views about originalism and longstanding precedent, though with a twist that is peculiar to state constitutions, which are often revised and re-ratified every several decades; here’s the heart of the court’s reasoning:

The Georgia Constitution provides that “[n]o person shall be compelled to give testimony tending in any manner to be self-incriminating.” Ga. Const. 1983, Art. I, Sec. I, Par. XVI (“Paragraph XVI”). If we were construing Paragraph XVI in the first instance, we might conclude that the scope of Georgia’s right against compelled self-incrimination is coterminous with the right guaranteed by the Fifth Amendment to the United States Constitution, which is limited to evidence of a testimonial or communicative nature. But we are not meeting Paragraph XVI for the first time; this constitutional provision has been carried over from prior constitutions, and it has brought with it a long history of interpretation….

We interpret a constitutional provision according to the original public meaning of its text, which is simply shorthand for the meaning the people understood a provision to have at the time they enacted it. This is not a new idea. Indeed, there are few principles of Georgia law more venerable than the fundamental principle that a constitutional provision means today what it meant at the time that it was enacted. “[T]he Constitution, like every other instrument made by men, is to be construed in the sense in which it was understood by the makers of it at the time when they made it. To deny this is to insist that a fraud shall be perpetrated upon those makers or upon some of them.” Padelford, Fay & Co. v. Savannah (Ga. 1854). “A provision of the constitution is to be construed in the sense in which it was understood by the framers and the people at the time of its adoption.” Collins v. Mills (Ga. 1944).

In determining the original public meaning of a constitutional provision, we consider the plain and ordinary meaning of the text, viewing it in the context in which it appears and reading the text in its most natural and reasonable manner. And although the text is always our starting point for determining original public meaning (and often our ending point, as well), the broader context in which that text was enacted may also be a critical consideration. “Constitutions, like statutes, are properly to be expounded in the light of conditions existing at the time of their adoption.”

One key aspect of that broader context is the body of pre-enactment decisions of this Court interpreting the meaning of certain text that the framers of our Constitution subsequently chose to use. In such cases, the text the framers chose had already been definitively interpreted. When the framers of our Constitution considered language that had already been definitively interpreted and kept it without material alteration, they are strongly presumed to have kept with the text its definitive interpretation. …

When we consider the original public meaning, we necessarily must focus on objective indicators of meaning, not the subjective intent of particular individuals that the language mean something idiosyncratic. The importance of this objective approach is plain when we consider our similar focus in statutory construction. When we consider the meaning of statutes enacted by 236 members of the General Assembly, we determine meaning from text and context, “not the subjective statements of individual legislators.” This focus on the objective meaning of statutory text is by necessity, for how can we possibly determine the subjective intent of 236 legislators (and a governor) by any method other than focusing on the text they enacted? …

Applying these principles, we construe the right against compelled self-incrimination preserved by Paragraph XVI in the light of the meaning of Paragraph XVI’s materially identical ancestors. The right against compelled self-incrimination achieved constitutional status in Georgia for the first time in the 1877 Constitution…. A case we decided just two years after the 1877 Constitution was adopted (and have never since overruled) is thus critical to the understanding of the scope of the right against compelled self-incrimination. In Day v. State (1879), we held that this constitutional right protected a defendant from being compelled to incriminate himself by acts [there, by being compelled to place his foot in certain footprints located near the crime scene], not merely testimony…. At no point through this history was the constitutional language changed to abrogate Day‘s interpretation, nor did we reconsider Day. To the contrary, we have consistently and repeatedly applied the state constitutional protection against compelled self-incrimination in accord with Day. [Citations omitted. -EV] Thus, although Paragraph XVI refers only to testimony, its protection against compelled self-incrimination was long ago construed to also cover incriminating acts and, thus, is more extensive than the Supreme Court of the United States’s interpretation of the right against compelled self-incrimination guaranteed by the Fifth Amendment.

Notwithstanding this well-aged precedent recognizing that the state right against compelled self-incrimination applies beyond mere testimony, the State argues that we should construe Paragraph XVI according to its plain text and limit the right to only what is commonly understood today to be “testimony,” i.e., spoken or written statements of certain kinds. The State argues that we erred in Day by ignoring the plain language of the constitutional provision and cites legislative history surrounding the creation of the 1877 Constitution as evidence that the framers of that constitution intended for the right against self-incrimination to be limited to testimony.

But even if the State were right that Day (and all the other cases that have since followed it) misread the constitutional text, we are no longer governed by the 1877 Constitution that Day interpreted. Since issuing our decisions in Day (1879) and Calhoun (1916), the people of Georgia have adopted three new constitutions (1945, 1976, and 1983). Our current constitution adopted in 1983 contains self-incrimination language that is identical in all material respects to the language interpreted in Day and Calhoun.

Thus, even if we were wrong in Day and Calhoun to extend the right against compelled self-incrimination beyond spoken and written statements, the subsequent ratifications of new constitutions with the same language are strongly presumed to have carried forward the interpretation of that language provided by Day and Calhoun. As we explained above, the adoption of a new constitution containing materially identical language already clearly and authoritatively construed by this Court is strongly presumed to have brought with that language our previous interpretation. This is so regardless of whether those holdings were well-reasoned at the time they were decided. The people of Georgia, by ratifying that constitutional text, ratified the scope of Paragraph XVI as Day explained it….

[In our precedents], we have held that a defendant’s right against compelled self-incrimination was violated when he was compelled to place his foot in certain footprints located near the crime scene. We also have held that a defendant’s right against compelled self-incrimination was violated when he was required to stand up at trial so that a witness could verify that the defendant’s leg had been amputated in a way that corresponded to tracks left at the crime scene. We have concluded that a defendant’s right against compelled self-incrimination was violated when he was required to drive his truck onto scales in order to determine whether he was operating a vehicle weighing more than permitted by law. We have also ruled that requiring a defendant to produce a handwriting exemplar violates the self-incrimination provision.

In contrast, the right against compelled self-incrimination is not violated where a defendant is compelled only to be present so that certain incriminating evidence may be procured from him. Consequently, we have ruled that the right is not violated by removing clothing from a defendant. Similarly, the right is not violated when evidence is [such as DNA] taken from a defendant’s body or photographs of the defendant are taken….

In sum, Paragraph XVI prohibits compelling a suspect to perform an act that itself generates incriminating evidence; it does not prohibit compelling a suspect to be present so that another person may perform an act generating such evidence…. [O]btaining [a] deep lung breath [through a breathalyzer test] requires the cooperation of the person being tested because a suspect must blow deeply into a breathalyzer for several seconds in order to produce an adequate sample. As the State conceded at oral argument, merely breathing normally is not sufficient.

The State argues that no compelled act is involved because a breath test only captures a “substance” naturally excreted by the human body, in the same way that collecting a urine sample does not violate a defendant’s right against compelled self-incrimination…. [But a]lthough a person generally expels breath from his body involuntarily and automatically, the State is not merely collecting breath expelled in a natural manner. For a breath test, deep lung breath is required…. [F]or the State to be able to test an individual’s breath for alcohol content, it is required that the defendant cooperate by performing an act. Compelling a defendant to perform an act that is incriminating in nature is precisely what Paragraph XVI prohibits. Calhoun (the right against compelled self-incrimination protects one from “doing an act against his will which is incriminating in its nature”).

UPDATE: I originally erroneously wrote that all the Georgia Supreme Court Justices had been appointed by Republican Governors, but reader David Emadi alerted me to my error — the number is actually 6 out of 9 (including Justice Peterson, who wrote the unanimous opinion). My apologies for the mistake, and many thanks to Mr. Emadi for the correction.