The Need to “Recover” our Constitution and How to Do It

Jul 9, 2021 by David Fowler

The Need to “Recover” our Constitution and How to Do It
I got a text from a state legislator on Wednesday that read, “How can a [U.S.] Supreme Court decision overrule our state Constitution? The [U.S.] Supreme Court has been wrong on Roe v WadeDred Scott and many others.” I get this question and others like it quite often. If you don't know the answer or if you mistakenly think the answer is "the Supremacy Clause," read on. The right answer is important because when you don’t know the rules of the game—which is what our state and federal constitutions are—then, in time, you will lose on every political issue you care about.
The short answer to this legislator’s question is the U.S. Supreme Court cannot repeal, remove, or rescind, let alone reword or replace any provision in state law, including those found in a State’s Constitution. That will sound strange, even to some lawyers, but it is called the “Writ-of-Erasure Fallacy.” If you want to understand this better, then read the linked article.

Another Question I Should Hear More Often Than I Do

Another question, related to the first, is this: Why do Tennessee officials stop enforcing our state’s laws or the provisions in our state constitution when the U.S. Supreme Court rules that a similar law or constitutional provision in another state is not constitutionally enforceable?
The short answer is this: A Tennessee official does not have to stop enforcing our state’s similar law as a matter of law. That, too, will sound strange to the average person and politician, even to many lawyers. 
Lawyers (and sadly, many confused conservative ones) and liberals will huff and puff about the Supremacy Clause that says federal law, the U.S. Constitution and federal treaties are the supreme law of the land. But at this audio link, former Alliance Defending Freedom attorney Jeff Shafer explains why that Clause does not apply to a Supreme Court opinion or judgment.
In sum, Mr. Shafer was saying a court’s judgment, even that of the U.S. Supreme Court, only binds the particular parties before the Court—those over whom it has jurisdiction—and no one else. Therefore, a judgment against Texas’ governor regarding the enforceability of a Texas law does not legally and judicially bind Governor Lee with respect to a similar Tennessee law, though he may choose not to for prudential reasons. Moreover, neither a court’s opinion nor its judgment is law in the constitutional sense of that word.

The Bottom-Line Constitutional Problem 

Here, I believe, is one of the major problems in our country and the reason political conservatives have too often gotten the short end of the stick:  

“[I]t seems the [Constitution’s] drafters assumed their posterity would maintain some level of educated awareness concerning their legal heritage. . . . Sadly, we largely have neglected that responsibility. And that neglect has empowered the Supreme Court to play fast and loose with the Constitution’s words and phrases, with most people none the wiser.”

That comes from my new book, Recovering the Constitution—Using the Ninth Amendment to Restore Civil Liberty, which I wrote with non-lawyers in mind, though suitable for the lawyer who needs to rethink a lot of what he or she was fed by liberal, “living Constitution” professors in law school. I’ve been doing a lot of re-thinking the last couple of years about what I was taught (or not taught) in law school!

What You Can Do to Remedy the Situation

One thing is to buy the book. But next Tuesday, the aforementioned Jeff Shafer and I will present a “Fundamentals of the Constitution” seminar in the Franklin/Williamson County area from 6:30 to 8:30 p.m. Come to that. It’s free, and it will be quicker than reading the book. You can register at this link.

What If I Don’t Live in Middle Tennessee?

If you can’t make the seminar next Tuesday, then I have another suggestion. If you are interested in pulling together your friends, some churches, or political organizations in order to turn out a number of people for this seminar in your local area, then let me know.  

The seminar in your area would look like this, and it could be done on a weeknight or on a Saturday morning. Mr. Shafer’s remarks from next Tuesday will be presented by a professionally produced video, and I will conduct a follow up question and answer period. Then I will present my own part of the seminar live, again followed by a question-and-answer period.

Who Is the Seminar For?

The seminar is for those I described in my book as “frustrated when the United States Supreme Court overthrows the will of the people . . . expressed through laws or constitutional amendments related to abortion, marriage, parental rights, biological differences between males and females and the like.”

Mr. Shafer will focus on what is going on when that happens and politicians do nothing about it and why, as a constitutional matter, you are rightly frustrated. I will show you what can be done about it, beginning with legislation that will be offered in the next legislative session. It will be a time of constitutional instruction and application.

If you are ready to get to work to recover our Constitution, let me know. I am ready to help you “learn the rules of the game” and “how to use them.”

David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. 

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