The Semicolon Court read the sentence correctly, and Texas has been laughing at it for 150 years

The opinion runs to a few dozen printed pages, and the whole of it turns on one sentence from the Texas Constitution of 1869. I keep a photocopy of that sentence in the front of the file. All elections for state, district and county officers shall be held at the county seats of the several counties, until otherwise provided by law; and the polls shall be opened for four days, from eight in the morning until four in the afternoon of each day. The semicolon sits between the two halves. Everything that followed in January 1874 came out of where it sits.

The case is Ex parte Rodriguez, and it is remembered in Texas, when it is remembered at all, as the Semicolon Court. The name is a joke at the court’s expense. The story most people carry is that a bench of Reconstruction appointees, facing the end of their own regime, seized on a punctuation mark to throw out an election that Richard Coke had won by a wide margin, and that Texans rightly ignored them. I carried that story for years myself. Then I read the opinion, which is what a lawyer’s training is for, and I came away with a different view of the court and a harsher view of the document it was reading.

Here is what the court was asked. The legislature had passed a law in 1873 providing that the December election be held on a single day, at polling places in precincts rather than only at county seats. The constitution said elections would be held at county seats until otherwise provided by law. It then said, after the semicolon, that the polls would be open for four days. The question was whether the phrase until otherwise provided by law reached across the semicolon and released the legislature from the four day rule as well as from the county seat rule.

Read the sentence as a piece of English and the answer is plain. The qualifying phrase sits inside the first clause, attached to the county seat requirement. The semicolon closes that clause. The second clause, on the four days, stands on its own and carries no qualifier. A legislature could move the polling places. A legislature could not shorten the polling period, because the constitution had fixed it and had given nobody the power to change it. That is how I would read a covenant drafted the same way, and I would expect the other side’s lawyer to read it the same way and to argue instead that the drafters had blundered.

They had blundered. That is the part the joke misses. The men who wrote the 1869 constitution put the hours of a polling day into the fundamental law of the state, which is a strange place for it, and then attached a release valve to only half the sentence. The court did not create that problem. It found it on the page, and it declined to fix it by pretending the semicolon was a comma.

Now for the position an experienced reader of these events would argue with. I think the court read the provision correctly, and I think the people who overrode it were also right to do so, and I do not believe those two statements contradict each other. The first is a statement about what the text says. The second is a statement about what a state can survive. A ruling that voided an election in which the losing side had already lost by a margin of something like two to one, delivered by judges whose appointing governor was the man who had lost, was never going to be obeyed, and the officers who took their seats in January knew it. Coke was sworn in on the fifteenth. The outgoing governor asked Washington for troops and was told, in effect, that the election had been held and the result should stand. He left the capitol a few days later. The constitution that had produced the case was replaced within two years.

What the episode taught me, as a working matter, is a distinction I use at a board table more than in an archive. There is what a document says, and there is what the parties can live with, and a person who confuses the second for the first will eventually sign something he did not understand. The court’s job was the first question. It answered it honestly. Everybody else’s job was the second question, and they answered it by walking past the court.

I will go one step further, and this is the step that draws the strongest objection when I say it aloud. The reputation of the Semicolon Court is a case study in how a losing side gets to write the history if the winning side never bothers to read the record. Coke’s supporters called the judges partisans, and some of them were. But the shorthand that survived, that the court hid behind a punctuation mark, is a description of the constitution’s drafting rather than of the court’s reading, and it has been repeated for a century and a half by people who have never opened the opinion. The dullest way to test a story like that is to find the document and read it, and the dullest way is the one that works.

Where my own habit breaks down is at exactly the point where the story gets interesting. Literal reading tells you what the sentence means. It has nothing at all to say about what to do when the sentence, read correctly, produces a result the state cannot bear. The judges who signed that opinion had the better of the argument on the page and lost everything else, and there is no method of construction that would have told them which of those outcomes to care about more. In 1874 the answer came from the streets of Austin and a telegram from the White House. In a boardroom it usually comes from somebody willing to say that the contract is clear and we are going to do the other thing anyway, and then write down why.

I would not have wanted to be on that bench. I also would not want to live in a state whose courts read the fundamental law as loosely as the joke demands. The two feelings can coexist. What cannot coexist is contempt for a court and ignorance of what it wrote.

A court can only tell you what the page says. Deciding whether the page can be obeyed is a job it was never given.