Needed: A COVID “Special Session From Hell”

Oct 21, 2021 by David Fowler

Needed: A COVID “Special Session From Hell”
This week, enough Republican members of the state Senate joined the Republican members of the state House to call for a special legislative session on issues surrounding COVID. For reasons I will explain, I think we need the kind of special session that will earn for it a moniker like that given one of the Senate Committees on which I served, “The Committee from Hell.”
The committee on which I served was formally known as the Senate Judiciary Committee. When I joined the Committee in January 1995, it was composed of nine members (same as today), but all of its members were lawyers (now it’s two). 
What made it the “Committee from Hell” was the thorough questioning, often about constitutional issues, to which non-lawyers presenting bills were subjected by the nine lawyers. We met for long hours and only the Finance Committee finished its legislative work after we did.
As with the bills the Judiciary Committee often considered, COVID has brought to the fore a plethora of difficult issues that deal with (1) principles of fundamental law and (2) oft-neglected constitutional principles. Getting it right will take serious thought that cannot be hurried.
Here is what I think needs to be considered and, at the end, I provide a link to the legislation I have proposed to some legislators that conforms to what follows, along with a summary explanation of it. If you support it, tell your legislator to consider it.

Time is Needed to Clarify the Fundamental Law

“Fundamental law” is an unfamiliar expression to most people. This session will not be special if time is not spent by members searching out the fundamental law which should guide whatever legislative decisions they eventually make. 
Fundamental law is the law that precedes an act of the legislature or a court’s judgment. It is the law that should guide legislators in the performance of their duties. It is the law from which many provisions in the Constitution and the Bill of Rights were derived. 
In sum, fundamental law is a law not derived by any act of human agency, and the first duty of every just civil government is to protect the rights that persons already have by virtue of fundamental law.
This concept of fundamental law is found in the Ninth Amendment to the U.S. Constitution. That Amendment describes the first eight amendments to the Constitutions as an “enumeration of rights,” which means those rights already existed; otherwise, they could not be enumerated. 

What Is the Fundamental Law and How Does It Apply to COVID Issues?

Fundamental law is that law from which we derived our common law right of personal security, which includes rights with respect to one’s life, body, limbs, and health, obviously rights fundamental to any legislative policy decision related to COVID mandates. These rights are important to all persons.
Fundamental law is also that law from which our common law rights involving private property. This right belongs not just to persons, considered as such, but to persons considered in their capacity as owners of businesses.  
Fundamental law also protects fundamental personal relationships. One fundamental relationship at common law was that of private contract. Commercial contracts entail issues of property and liberty under fundamental law. That’s why state governments cannot have a “law impairing the obligation of contracts” (U.S. Constitution, Article I, Section 10, Clause 1; Tennessee Constitution, Article I, Section 20). Another would be the physician-patient relationship.
COVID health mandates, whether private or government imposed, bring at least these rights at fundamental law into conflict, and careful policy lines must be drawn. That cannot be done correctly and done in a hurry.

Fundamental Law Limits Federal Jurisdictional Claims. 

I touched on this last week, but the Ninth and Tenth Amendments made fundamental rights under the fundamental law a matter of state jurisdiction. 
I cannot explain here why that is so, but this was confirmed by the U.S. Supreme Court even after and in consideration of the 14th Amendment in the still-talked-about Slaughter-House Cases. If you want to know more about the subject, you can buy my new book. 
By grounding any new state laws limiting COVID health mandates in fundamental law, the legislature will set up a conflict between the state’s claim to jurisdiction over issues affecting the health of its residents and the practice of medicine and the federal government’s asserted claims to jurisdiction under the Commerce Clause, which I commented on last Friday.

Protecting Tennesseans’ Rights under Fundamental Law and Upholding the Constitution

Lt. Governor and Senate Speaker Randy McNally said this week there was nothing the legislature could do to make a federal COVID injection mandate more unconstitutional than it already is. 
That is true, but what the legislature can do is represent Tennesseans by enacting a state law that effectively makes any federal COVID injection mandate void and unenforceable in Tennessee with respect to individual persons.
Enacting legislation that gives individuals the right to refuse a COVID injection brings the issue of unconstitutionality to a head. It certainly frustrates the federal government’s intent to get individuals injected by putting a mandate on the individual’s employer to require it. 
It makes the federal government defend its mandate and protects Tennesseans from having to choose between jumping through medical and religious exemption hoops or losing their jobs. 
Working through all these constitutional issues will also take time and cannot be done hurriedly or ill-advisedly. That is why I have provided a draft of The Health Care Liberty Jurisdiction Act to a few members of the General Assembly so they can start thinking through these matters now. The Act’s terminology may need to be tweaked to conform the language of COVID, but it hits the points I’ve highlighted.


Important work of fundamental and constitutional law must be done during the COVID legislative session if the legislature’s work is to make sense to people and stand up in court. 
What needs to be done cannot be done in a hurry. It will need to be a “Special Session from Hell” if what is done is done correctly.
David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. 

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