The Tennessee Legislature Reconvenes with Primaries Looming Ahead

May 22, 2020 by David Fowler

picture of legislator's hands cupped around the legal code symbol
The Tennessee General Assembly reconvenes June 1, and it is still up in the air as to how much regular business it will conduct. I suspect it will be rather short, because primary season will be around the corner. But I have come to believe that perhaps the thing voters most need to know about legislative candidates isn’t where they stand on policy issues; it is something more fundamental.

For the last several years I’ve been speaking to legislators and more recently with our governor about legislation related to the U.S. Supreme Court’s decision in Obergefell v. Hodges, a decision about marriage that “had nothing to do with” the Constitution, according to Chief Justice John Roberts. For the last year, I’ve been speaking with a number of legislators about legislation related to Roe v. Wade and Planned Parenthood v. Casey, the Court’s key abortion decisions.

From a policy perspective, the members of the General Assembly and the governor believe that all persons, born and unborn, have a right to life and that marriage is, by definition, a relationship between a man and woman. The problem isn’t convincing them of these policy positions.

Here’s the problem: These, and many other issues like guns, school vouchers, and refugee resettlement, are now the subject of constitutional litigation.

As a result, what often lies behind or underneath a policymaker’s decision—what legislation he or she will vote for—is how he or she understands the function of the judicial branch and the nature of its powers vis-à-vis that of the legislative and executive branches.

In other words, the issue that often determines a policymaker’s decision is his or her understanding of the very frame of civil government established by the U.S. Constitution.

Understanding the Issue by Analogy

To picture the problem, assume that taking an oath to uphold the Constitution is like someone taking an oath to obey the rules of football. The person takes the oath. But what if the person thinks of football as what Americans call football when really what was intended were the rules applicable to what the rest of the world calls football, which is soccer to us? It would be nothing but confusion for that person when the game starts.

And confusion is what we have if some legislators are playing the “legislative policy game” laid out in the U.S. Constitution as it was written and intended while others are playing under a U.S. Constitution the U.S. Supreme Court made up through its various opinions. Two different policy games are being played, and voters need to know which one their legislator is playing.

Where the Constitutional Confusion Comes From

In 1958, in Cooper v. Aaron, the United States Supreme Court was confronted with efforts in Arkansas to delay its plans for the integration of public schools following the Court’s decision in Brown v. Board of Education. Brown reversed an earlier decision holding that laws that make distinctions based on race were not unconstitutional so long as everything else—for example, the quality of education provided—was equal. The only issue was whether Arkansas should be given more time to implement its integration plan.

Though unnecessary to render a proper judgment on that specific issue, the Court in Cooper went further. It said,

[T]he federal judiciary is supreme in the exposition of the law of the Constitution.  . . . It follows that the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land and Art. VI of the Constitution makes it of binding effect on the states.

There is so much wrong in this statement that it’s hard to know where to start, but this is where the false doctrine of judicial supremacy began.

In the next section, I’ll provide a couple of reasons why it is wrong, but it is a belief in this statement—accepting it lock, stock, and barrel—that dissuades legislators from challenging decisions like Roe and Obergefell.

It is also the view of the Constitution held by the state’s attorney general’s office, the advisor to legislators on issues like this.

So, if this view is wrong, then you can see where relying on advice from the attorney general would lead legislators and the governor. It leads to legislation asking the Court to decide for our policymakers at which of 12 stages of fetal development it has permission to secure to persons within the boundaries of Tennessee their right to life.

Why Is the Court Wrong?

Like most falsehoods, they start with an element of truth, absent which the lie would be easily seen and rejected. The Court correctly said the “federal judiciary is supreme in the exposition of the law of the Constitution,” but it is supreme only as between the parties in a particular case because those are the only parties over which it can even assume jurisdiction.

Leaving out the italicized limitation then allowed the Court to make the leap in logic that its decisions were then the “supreme law of the land,” meaning equivalent to the words of the U.S. Constitution itself.

Only if a decision is equal to the Constitution could the Court then say its judgment was of “binding effect” on all the states, even the states and officials that were not parties to the original case.

There is more wrong with this than space allows me to explain, but we can stop with this one point.

Have you ever heard of Due Process? It’s the idea in the Fifth and 14th Amendments that everybody gets their day in court to make their case.

Yet, the supposed guardians of Due Process, the U.S. Supreme Court, by saying its decision relative to one state binds all states, has led states and state policymakers to believe that they can’t have their own day in court.

Who cares if their state’s law may be different in certain ways from the one the Court examined and those differences might lead to a different analysis of the Constitution? The Court ruled.

Who cares if their state has a different or better argument to make in defense of their law than the one offered by the state that lost? The Court ruled.

When policymakers and the state’s attorney general accept this view of judicial supremacy, they are guilty, in Abraham Lincoln’s words from his first inaugural address, of having “resigned our government into the hands of that eminent tribunal.”

What Can We Do About It?

This year, Family Action Council of Tennessee is not going to do legislative candidate surveys. We have found that we can’t word a question on a policy issue with enough precision to get at what legislators believe about judicial supremacy and how it will affect their policy decisions.

Instead, we will be doing short videos in which I will actually explain a policy issue in terms of judicial supremacy. Candidates will be asked to watch the video, and then say whether they agree or disagree with our view of how judicial supremacy connects to that policy issue. We will then distribute their answers within their districts through a digital media campaign.

I think you will learn a lot just from watching the videos, which should be online by approximately July 1. You’ll see how warped things get when judicial supremacy filters into policy decisions.

It is time voters know what may lie behind their legislators’ policy decisions.
David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. 

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