Uncle Sam and the Tennessee Capitol building

Can Our Form of Government Continue to Work?

I heard from a number of “new” RINOs after last week’s commentary, and they, like me, are increasingly frustrated with the direction of our government. This week I’d like to suggest something more radical than a mere change in the function of our government. Based on a recent lobbying experience, I wonder whether our form of government will even continue to function as intended.

A Key Governing Principle: Separation of Powers

One thing our Founding Fathers were concerned with was a concentration of power within the structure of our government that would crush the liberty of the people. They were concerned with power becoming concentrated in the judicial, legislative, or executive branches and with the power of any two of those branches of government combining against the third. This separation of powers was important to securing liberty for the people.

And how was this separation of powers to be protected and preserved? Federalist Paper No. 51 by James Madison provides the answer:

[T]he great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. . . . Ambition must be made to counteract ambition.

What Our Founders Didn’t Count on

This was wise. Our Founders counted on man’s ambition for power to counteract encroachments by others on the power they were given. What they didn’t count on was the love of the position itself—they didn’t count on elected legislators being fearful of doing anything that would prevent their re-election.

A Current Example of the Unanticipated Problem

This session, the Tennessee Legislature was asked to enact legislation that would tell our judges that the words “mother,” “father,” “husband,” and “wife” meant what everyone thought they meant. That would seem unnecessary, but a judge was being asked to “interpret” the word “husband” in a particular law to mean “spouse” when the statute was clearly referring to a biological male who was the counterpart to a “wife” in a marriage. And he was being urged to do so at the insistence of our state attorney general.

As I lobbied state legislators, I was struck by this response from a key legislator, generally known by his constituency as a “conservative.” This legislator fully understood that the judge in the case I described was being asked to rewrite a statute, and he realized that the judge would be doing so because of same-sex “marriage” and not because the meaning of the word “father” itself had changed over time. He understood that the purpose of the bill was to let our courts know that they could not “modernize” our statutes through judicial interpretation.

But the legislator was hesitant to support the bill. The reason for his hesitation? Dealing with legislation on this subject was too politically controversial.

Specifically, he said he didn’t think the Legislature would want to deal with any legislation regarding existing family law. To vote for bills to “modernize” those laws to comport with same-sex “marriage” would irritate conservative voters, and not to vote for them would irritate LGBT activists. His assessment is probably correct. His conclusion: Maybe it was best to let judges deal with the problem.

And that’s what the judge did. He ruled that “husband and wife” could be interpreted to mean “spouse and wife.”

The legislative body has been given the constitutional power to protect its power to write laws by removing judges who encroach on that power. But there aren’t enough lawmakers who will exercise it. And judges, seeing that the Legislature will not complain when they arrogate to themselves a power to “modernize” the law, will love that power and exercise it more often.

Where Does This Leave Us?

What our Founders had assumed would happen in situations like this is that legislators would not want a judge to encroach on their power to write statutes and that they would do something to protect their power. Whether that assumption still applies was put at issue in my conversation with this lawmaker.

Thankfully, not all legislators share that legislator’s perspective and, thankfully, this particular legislator did vote for another, different bill that told the courts that any undefined word in the Tennessee Code should be given its “natural and ordinary meaning” unless the context clearly shows that a different meaning was intended.

But what I realized was this: If the “ambition” simply to hold legislative office overcomes the Legislature’s “ambition” to protect its power from encroachment by the judiciary, then the separation of powers will become a dead doctrine. And with its death will come the death of our liberty.

David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.

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Am I a RINO?

As I’ve watched Republicans over the last few years, I have developed an uneasy feeling that I am becoming a RINO, a term which, to the political novice, means “Republican In Name Only.” That may shock my conservative friends, but you may be a RINO, too.

To appreciate what I mean, let me provide a little context.

The Function of Law

I see law as having primarily a “negative” function. In other words, for me, law should function more like the Ten Commandments, which are “negative” in that they “negate” or restrain certain actions—the “thou shall nots.” The law identifies an evil—for example, various forms of stealing, dishonest dealing, killing, and destruction of private property—and seeks to prevent it. When law’s function is primarily negative, its function is rather modest.

The opposite view is to see law’s function as “positive.” Those who believe law has a positive function think the law’s function is to affirmatively improve the lives of people. Law’s function is to make your life better.

The Implications

I readily admit the positive view of law is more appealing than the negative view, particularly in our culture. Today, no one likes to be told no; “thou shalt not” is not popular. And passing laws to make folks lives better just sounds good and altruistic.

But when civil government thinks its job is to use the law to make a citizen’s life better, the government is now in the position of defining for you what makes your life better instead of you. And when making my life better is the government’s function, then government can come up with all kinds of things it thinks it can do for me to make my life better. Government gets bigger and bigger doing all its good things.

What That Means for Republicans

Republicans are people, too (though liberals might assail that assertion), and they don’t like being labeled “the Party of ‘No’.” So as I’ve watched members of Congress and the state Legislature over the last few years, I have found an increasing number of Republicans wanting to “do things” for people to improve their lives.

I also have this uneasy feeling that an increasing number of Republicans believe a strong economy is the government’s responsibility, that its function is to affirmatively “do things”—make “investments” with other people’s money—to make sure our economy is strong.

On top of that, many Republicans increasingly want to solve people’s problems and save them from the consequences of their wrong decisions. If they don’t, then they are hard-hearted, mean-spirited, uncaring, and uncompassionate. Of course, it takes lots of government programs paid for by other people’s money to protect the foolish from themselves. And, of course, the foolish tend to continue being foolish, which creates a demand for more government programs.

One way I plan to test my theory is to watch over the next several months as Republicans announce their gubernatorial aspirations. I want to see if some or all of them say something about wanting to help people, improve the lives of people, make things better for people, etc. I want to see if, by their statements, they effectively volunteer to shoulder responsibility for the state’s economy.

Are ‘Old’ Republicans the New RINOs?

It used to be that Republicans said things like President Reagan said, “government is not the solution to our problem; government is the problem,” and “the most terrifying words in the English language are I’m from the government and I’m here to help,” and “where government has gone beyond its limits is in deciding to protect us from ourselves,” and “all great change in America begins at the dinner table.”

But those kinds of Republicans are fast disappearing, being replaced by the new breed of Republicans, who increasingly are just like Democrats—they think government is the solution; they would just go about it a bit differently from the Democrats. Like the Democrats, they now see the law’s function as positive.

So, if that is now what being a Republican means, I guess that makes the old RINOs the new real Republicans and makes me the new breed of RINO. My, how times have changed!

David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.

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Will the Legislature Finally Bite Back?

There is supposed to be a balance of powers between the three branches of state government. But that balance is out of whack, tilted in favor of the supposed “least dangerous branch”—the judiciary. The proverbial tail, in this case the judiciary, is now wagging the dog, otherwise known as the state Legislature. After last week, I think you’re going to see some of the “dogs” in the Legislature bite back.

The spark that lit a fire under some legislators was a decision last week by Judge Greg McMillan in Knox County. He decided he could rewrite a statute because he thought it was unconstitutional. No judge has that power.

Judges Can Only Interpret Ambiguous Terms

Judges do have the power to interpret a law and, in the words of the Tennessee Supreme Court, “if an ambiguous term has created a constitutional problem which may be solved by construction, courts have a duty to do so.” In other words, if a term is “ambiguous,” then courts should give that term a meaning that would result in the statute being constitutional.

That, of course, is just common sense; it’s simply a recognition that the Legislature’s intent would always presumably be to enact a constitutional law.

But if a term is not ambiguous and that term makes the law unconstitutional, then a judge should hold the law unconstitutional and let the Legislature figure out what to do next.

Is ‘Husband’ an Ambiguous Term?

Given that legal primer, let me ask, “Is the word ‘husband’ ambiguous to you?” Let me ask it another way: “Is a ‘husband’ always a male?” Before you answer, keep in mind that even when two women marry, neither of them goes by the moniker “husband.”

My guess is you answered correctly, that a “husband” is a male. But my rather straightforward question was apparently too tricky for Judge McMillan and for our attorney general, Herbert Slatery. For them, the word “husband” in a statute dealing with the insemination of a “married woman” with the consent of her “husband” is apparently ambiguous.

The reason I know that is because Judge McMillan ruled last week, at the urging of our attorney general, that the word “husband” needed to be interpreted. Remember, only ambiguous words need interpreting.

Judge McMillan agreed with General Slatery that the word “husband” needed to be interpreted in a “gender neutral” fashion to mean “spouse,” so that the word “husband” could include a wife.

The excuse given by the judge and General Slatery for this act of judicial legislation was that the law would be unconstitutional if the word “husband” was given its normal and ordinary meaning, which, by the way, is how the Tennessee Supreme Court says words should be interpreted.

Are ‘Husband’ and ‘Wife’ Really Interchangeable Words?

And why would a statute governing the relationship between a “husband” and “wife” be unconstitutional? General Slatery said it is now unconstitutional to have a statute pertaining only to husbands and wives because of the U.S. Supreme Court’s same-sex “marriage” decision, Obergefell v. Hodges. According to him, Obergefell requires judges to rewrite all existing laws governing the family in a sex-neutral way.

Obergefell did no such thing. In fact, the Texas attorney general recently argued before its state Supreme Court that Obergefell only dealt with the licensure of marriages and the rest of family law was still within the exclusive jurisdiction of the states.

General Slatery Leads Judge Astray

What is maddening is that until General Slatery got involved in the Knoxville case, Judge McMillan had gotten it right. He had ruled, “The statute is not ambiguous. This Court does not read the United States Supreme Court’s opinion in Obergefell . . . to override this Court’s duty to interpret statutes in a manner that gives effect to their plain meaning.”

But when one of the parties asked the judge to consider whether a normal reading of the statute might mean it was unconstitutional, in came the attorney general to “save” the statute from ignominious defeat with his husband-can-really-mean-wife theory of sex and marriage.

What that means is that you can lay this bad decision and the abdication of the state’s jurisdiction over family law directly at the feet of General Slatery.

Some Legislators Are Barking; Will They Bite?

What will the Legislature do now that Judge McMillan thinks rewriting unambiguous laws to make them constitutional is his job—not the Legislature’s?

Moreover, what will they do now that they know their state Supreme Court appointed lawyer—General Slatery—thinks the state should abdicate its jurisdiction over family law to the U.S. Supreme Court and thinks that it is the role of judges, not the Legislature, to rewrite unambiguous laws if they think the law, as written, is unconstitutional?

Stay tuned. Based on a meeting I had the other day, I suspect that come next January some of our legislators may just bite back and try to restore the balance of power between themselves and the judiciary and its lackey, the attorney general. The barking, at least, has started.

David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.

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The Little Guys in the House Are a ‘Gas’ to Watch

I don’t usually comment on Tennessee political issues that are outside the focus of the organization for which I work. But what is going on with the gas tax is just too interesting to let slide.

To appreciate what’s going on, you need to understand that the state House has always had a top-down management style.

It works sort of like this. The Speakers typically give the rank-and-file Representatives (hereafter, the “Little Guys”) the freedom to represent their folks back home, so long as their views on something important don’t conflict with that of the Speaker or the Governor, to whom the Speakers for some reason seem to always take some kind of fealty oath. But when there is a conflict, the Speaker uses the loyalty of his or her committee and subcommittee chairs, engendered by their being given a position of “importance,” to bring down the hammer and get the “preferred” agenda rammed through.

For example, two years ago, the Governor’s Common Core education program had to be protected at all cost. So the word came down from somewhere on high that legislation to repeal Common Core had to die.

The Chair of the House Education Subcommittee shunted the legislation off to his subcommittee’s last meeting for the year. That almost ensured the legislation’s demise, because the Legislature would most likely adjourn before the legislation could move through the legislative committee labyrinth.

Well, the Little Guys back then, hearing from their constituents back home that they didn’t care one little bit that the Governor liked Common Core, rose up. They stuck an amendment that would repeal Common Core onto a bill that was already on the House floor, thereby forcing their concerns to be heard.

It was ugly for Speaker Harwell and the Governor. On the floor, the Little Guys ate their lunch. Eighty something legislators voted for the amendment and then for the amended bill.

Now we come to the present, what one might call “Common Core 2.0,” otherwise known as the Governor’s IMPROVE Act. The Governor quite naturally wants his bill passed, and, apparently, that means that the House Speaker has to carry out his orders. So, in recent weeks, the bill got rammed through a couple of committees by the Speaker’s henchmen, and it now sits in the House’s Finance Committee. A favorable vote there and the bill goes to the House floor.

But the Little Guys just won’t shut up and go along.

Two weeks ago, Rep. Jerry Sexton from tiny Bean Station went on record in one of the committees as saying (and I paraphrase), “Republicans sure like to talk about smaller government and lower taxes during elections, but when we get elected and come down to Nashville, something seems to change; we Republicans just have to raise taxes to fix our roads, even though the state has more money than it can spend, praise Jesus.”

The video of his comments went viral—30,000 views in a week! I think people were shocked to see a Republican courageous enough to call out Republicans for their efforts to massage an increase in the gas tax and publicly buck the Speaker and the Governor.

Then came a press conference on Monday. This time Rep. Sexton was flanked by about 16 of his colleagues. And there were more who I know would have been standing there had they been able to attend. They demanded that the IMPROVE Act be sent back to the original committee and that the process be started all over, but without all the ramming and cramming this time.

I could see a huge fight on the House floor coming. The IMPROVE Act may be rammed through Finance to the House floor in the days ahead, but then all the Little Guys may just try to “common core” the Speaker and Governor on the floor.

Now, maybe it’s just coincidence, but by week’s end Speaker Beth Harwell was coming up with a plan that does not raise the gas tax. Then, again, maybe she really does have her eye on a gubernatorial race, and maybe she got to thinking how she’d look on the campaign trail with two black eyes, one from Common Core and the other from the IMPROVE Act.

To be honest, I’m not as much interested in how we wind up paying for our roads as I am interested in seeing the Little Guys rise up. They may not “win,” but I appreciate someone standing up for us, the proverbial little guys among the citizenry. Too many of us feel like too often we have too little voice in what happens. So I say, “Little Guys, may your tribe increase! The process has got to change.”

David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.

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What Newspapers Didn’t Tell You

Thomas Jefferson once said, “The man who reads nothing at all is better educated than the man who reads nothing but newspapers.” After being on the inside of state politics for 23 years, I increasingly tend to agree with him. A story in The Tennessean this week is a case in point.

The story related to action taken Wednesday by the House Civil Justice Subcommittee on House Bill 892, dubbed the Tennessee Natural Marriage Defense Act. Thankfully, no other newspaper picked up the story because it so missed the whole point of what took place that those who didn’t read it are better off than those who did.

The heart of the debate centered on an amendment that rewrote the original bill. If you read the article, you would have no idea what the amendment was about.

The amendment is primarily directed at two things: directing state and local officials to obey the marriage license law that requires applicants to be a male and female until a final court order tells them otherwise, and making sure that the state protects them in court if they do.

The story never told you why the amendment was offered. It was because no court has ever ruled on how the U.S. Supreme Court’s same-sex “marriage” decision (Obergefell v. Hodges) applies to Tennessee’s male-female marriage license law.

Many would say, “So? The Court was very clear; laws restricting licenses only to males and females are invalid.” That’s true, but that’s also the point—no one, including our state attorney general, has thought to ask, “If that opinion renders our law invalid, then what is the law?”

This is where an opinion from the attorney general’s office comes in. His office has opined that office holders such as county clerks must obey a law until a court officially declares it unconstitutional.

This opinion makes perfect sense. If every county clerk could decide how to interpret the effect of Obergefell on our law, then, as I told the subcommittee, we would have chaos.

One clerk, following the attorney general’s opinion, could say that the law is still valid until a court rules it is invalid and might only issue licenses to male and female couples.

Another clerk could say there is no marriage license law because Obergefell invalidated it, and the Legislature hasn’t replaced it. And another clerk could decide the Obergefell decision itself somehow “amended” the law to authorize any two people to get a license.

Only a court can “judge” which of those views is correct, and no judge has done so.

So why aren’t county clerks doing what the attorney general said? Why aren’t they following the law until a court tells them to stop? Simple. They will get sued for not issuing a license to same-sex couples, and they will have to defend that lawsuit at the expense of local taxpayers. And that is where the amendment comes in.

The amendment protects all officials who will obey the law. It does so by allowing the attorney general to defend them and, if the attorney general declines, then the state will indemnify that official (and local taxpayers) from any legal fees he or she has to pay and from any court costs if they lose.

That amendment was adopted. Then the subcommittee delayed a vote on the bill, as amended, until next year.

The vote was delayed because two pending lawsuits that I am handling as an attorney (The Tennessean wrongly reported that I was a “party”) may resolve the question of what law, if any, still exists after Obergefell.

However, if over the next few months the Tennessee court system decides it does not want to hear those cases and refuses to determine what the effect of Obergefell was on our law, then we will come back to the bill. And if the bill is enacted, maybe some of our county clerks will muster the courage they need to obey the law and follow the attorney general’s advice to that effect.

If just one county clerk then decides to obey the law, a same-sex couple will sue him or her. But he or she will be defended in court by the state. And the courts will not be able to avoid making a decision in that case on what law, if any, still exists after Obergefell.

What happened in that subcommittee was a significant step toward resolving a huge, unanswered constitutional question left hanging by Obergefell.

If the bill has to be taken up again next year, then opponents will have to address the legal and constitutional question the amendment raises. The focus will not be on whether we should have same-sex “marriage,” but on whether we should uphold the rule of law. That will be a significant change in the nature of the debate.

And now to paraphrase Thomas Jefferson, you are better educated than the person who read the newspaper story.

David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.

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