The Legal and Constitutional Tonic We Need to Protect Tennessee's Children

Jan 20, 2023 by David Fowler

The Legal and Constitutional Tonic We Need to Protect Tennessee's Children
It would sound hyperbolic to say that our lack of appreciation for, even aversion to, common law is killing our Republic, though it is true, but today I will restrain myself to explaining why common law may be the only tonic capable of constitutionally protecting children from transgender treatments by Tennessee health care providers.

The context for explaining this is Senate Bill 1/House Bill 1. It seeks to prohibit health care providers and facilities in Tennessee from doing harm to a child’s healthy body parts and organs. These harms are euphemistically passed off by some health care providers as “gender affirming care.”  

The bill also allows children to sue their parents for monetary damages, but that very questionable idea is a problem for another day. Suffice it to say that liberals who want to further divorce children from the restraints of “oppressive” patriarchy or matriarchy—parents, in general—will take that opening and run with it. 

But, putting aside this issue, most Tennesseans would say “What does the common law have to do with this?”

The answer is, “Everything,” because the bill, if enacted, will face two constitutional hurdles that do not exist for other laws directed at child abuse.

Constitutional Problem No. 1.
Follow me, point-by-point, as I lay out the first argument liberals will make for why Senate Bill 1/House Bill 1 is unconstitutional:
  1. The United States Supreme Court’s constitutional jurisprudence states that the “Constitution promises liberty” to “persons” to “define and express their identity.” (Obergefell v. Hodges, 2015)
  2. The prepubescent and pubescent among us are persons.
  3. This legislation implicates matters of “identity” and “expression”—gender identity—which, at least on its face, seems to fit within the scope of what this liberty right protects.
  4. For this “liberty right” to be realized, it requires access to “health care”—which was the same argument used for 48 years to defend a right to abortion as “health care.” 
  5. It will be argued that there is a constitutional right to pursue this form of “medical treatment” and “health care” for the sake of the constitutionally protected “right” to self-identification and expression. 
  6. This argument will be supplemented by three recent U.S. Courts of Appeal decisions stating that sex (as a biological or physiological phenomenon) is distinct from gender identity. 
  7. The law is unconstitutional because it infringes on a constitutionally protected liberty right.

Constitutional Problem No. 2
Here is the second reason liberals will say Senate Bill 1/House Bill 1 is unconstitutional:
  1. The United States Supreme Court has: 
    1. recognized there are limits to civil government’s interference in the sphere of the family, and
    2. constitutionally protected certain aspects of the relationship between a parent and child.
  2. Health care decisions for minor children are normally within the scope of the parent-child relationship.
  3. Consenting to “gender affirming care” is a health care decision (see Points 3, 4 and 5 under Constitutional Problem No. 1) within the scope of protected rights normally belonging to the family and inherent in the parent-child relationship. 
  4. Moreover, within the parent-child relationship should be the right of a parent to protect his or her child’s constitutional rights.
  5. Self-identification and expression is a constitutionally protected liberty right (see Point 1 under Constitutional Problem No. 1).
  6. The bill is unconstitutional because it interferes with the constitutionally protected parent-child relationship and with regard to their right to protect their child’s constitutionally protected “liberty right” (a double whammy!).

Why this bill is not as simple as other child abuse laws

To the constitutionally naive, here are two reasons you cannot say Senate Bill 1/House Bill 1, as drafted, “is just like other child abuse laws, so why aren’t they unconstitutional?”
  1. No current child abuse law even remotely involves a right in the child that is arguably constitutionally protected
  2. No current child abuse law could remotely involve a claim by parents that they are within their constitutional rights to protect and further a constitutional right belonging to their minor child. 
What the bill seems to lack

As I read the bill, it contains no legislative findings that would proffer to a federal court a solution to the above constitutional problems. Federal judges need a reason not to buy the arguments I just outlined, and the legislature should and can give them one!

Unfortunately, the bill, as drafted, literally begs liberals to make a Roe v. Wade type argument, but this time, not to create a new right, but to further an already existing “right” in “persons”—which pre-teens and teenagers are—to “define and express their identity” (Obergefell).

Why does the bill, as currently drafted, beg for this kind of argument? Because its stated legislative justification rests strictly on current findings in medical science. This makes the bill particularly vulnerable to a spitting contest in federal court between differing scientists and medical professionals. 

Who wins? Who knows.

But personally, I am not interested in fighting over what medical science claims to prove over the next, say, 48 years, as we did with “abortion health care.”

What is the solution—the “tonic”—we need?

The only solution I see to these constitutional arguments is the one that in June killed Roe v. Wade and protected the Second Amendment, namely, the common law. Here is why it is the key:
  1. The common law defines those rights that are fundamental in our common law-based legal and constitutional system. 
  2. Fundamental rights at common law are pre-political rights or, loosely speaking, rights the common law recognizes because “endowed by our Creator.”
  3. Common law rights are fundamental in the sense that no private person and no government agency can ever abridge, diminish, or take those rights away without due process of law. 
  4. Even the U.S. Supreme Court acknowledges the preceding points.
What is the fundamental right of the child that the State must protect?

One of our fundamental rights at common law is to have our limbs and body protected from physical harm.

To be just, civil government has to protect and secure that right from deprivation by third parties. 

That is why we have criminal laws against battery (touching another without their consent), and our courts recognize lawsuits for damages caused by an unauthorized touching of another’s body.

The preceding should eliminate Constitutional Problem No. 1. Civil government would fail in its duty to protect fundamental rights at common law if it did not prevent health care providers from causing long-term damage to or permanent impairment of a child’s healthy and properly functioning body.

But this necessarily eliminates Constitutional Problem No. 2 as well. A parent can never have a lawful right, let alone a constitutionally protected one, to deprive his or her child of a fundamental right not to have their healthy body parts and functions destroyed. A parent cannot do through third parties (health care providers) what he or she cannot lawfully do. That would be silly.

The Constitutional coup de grâce.

And finally, here is the common law coup de grâce by which the imposition of transgender ideology on children is defeated in Tennessee: Even the United States Supreme Court has held that the Constitution reserves jurisdiction over common law matters to the states. That authority should be used against federal judges and to our state’s advantage.

“Drink the common law tonic!”

I believe legislators and citizens need to see the proper use of common law as a tonic to restrain liberal federal judges. 

And in this instance, it is the tonic we need to protect children from liberal federal judges who might want to extend Obergefell’s made-up “liberty” to self-identification and expression to something more than a marriage license, such as imposing transgender ideology on all of us.

I hope our legislators drink down the common law tonic we need no matter how unfamiliar its taste may be to their palate.

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