placing blaming with pointing fingers

Pointing Fingers and Placing Blame on the ‘Fetal Heartbeat’ Bill

I met with mixed emotions the Senate Judiciary Committee’s vote late Tuesday to defer a vote on the pro-life “fetal heartbeat” bill until more testimony could be provided during a summer hearing, after which the bill could be taken back up next January. The outcome really tested what I believe.

Restoring laws that respect God-given life and the creational design of marriage has been and will continue to be foremost on my policy agenda. But, to be honest, the push for passage of this bill was not on my agenda for this session. It was initiated by legislators, so I left them to handle their own business while I was focused on the other issue, marriage.

A Waste of Time?

But I pulled away from that work for the last week or so to help Senator Pody get the “heartbeat” bill worded right and develop a legal argument supporting its constitutionality. So, having been distracted from my planned work only to learn that at the end of Tuesday’s hearing there was never any intention of giving the proffered testimony any real consideration really magnified my disappointment and frustration.

By all appearances, I had wasted my time over the last week researching cases, preparing an extensive legal memorandum and my abbreviated oral testimony, and assembling and delivering to legislators a notebook of law review articles and other materials to back up my testimony. Moreover, Tennessee had foregone an opportunity to join a growing chorus of states passing “heartbeat” bills in an effort to force the U.S. Supreme Court into revisiting Roe.

As I thought about what happened, I wanted to point fingers and place blame, and there were a host of good targets.

Putting the Blame-Game in Perspective

But as I tried to make sense of it, another core belief registered in my mind that I knew had to be taken into consideration before I could assign blame—what I believe is true about God.1

Lying in the dustbin of modern evangelicalism, with its emphasis on the self and how we feel instead of what we think, is regular teaching about who God is from God’s own perspective.

Get a load of how the Westminster Divines defined God and you will see what I mean. (It’s long, but mentally luxuriate in some of its expressions):

God . . . is infinite in being and perfection, a most pure spirit, invisible, without body, parts, or passions, immutable, immense, eternal, incomprehensible, almighty, most wise, most holy, most free, most absolute; working all things according to the counsel of His own immutable and most righteous will, for His own glory; most loving, gracious, merciful, long-suffering, abundant in goodness and truth, forgiving iniquity, transgression, and sin; the rewarder of them that diligently seek Him; and withal, most just, and terrible in His judgments, hating all sin, and who will by no means clear the guilty. God has all life, glory, goodness, blessedness, in and of Himself; and is alone in and unto Himself all-sufficient, not standing in need of any creatures which He has made, nor deriving any glory from them, but only manifesting His own glory in, by, unto, and upon them. He is the alone fountain of all being, of whom, through whom, and to whom are all things; and has most sovereign dominion over them, to do by them, for them, or upon them whatsoever Himself pleases. In His sight all things are open and manifest, His knowledge is infinite, infallible, and independent upon the creature, so as nothing is to Him contingent, or uncertain. He is most holy in all His counsels, in all His works, and in all His commands.2

I suspect when some people read that, they will shudder and think how horrible such a God must be. I get that; I really do. After all, that kind of God crushes every proud thought we naturally have about how good, wise, influential, and significant we are. Self-esteem must deny such a God (which may explain why much of modern evangelicalism doesn’t talk much about all of that which is true of God).

But to others, it may have been their point of departure in understanding how amazing the mercy and grace of God really is toward us, because in coming to see who God really is, they realized that the infinitude of their insolence was justly damnable.

What This Means When Expectations and Providence Collide

Here, though, is my point: When these thoughts about who God is become precious to a person, they become an anchor to which that person can hold when the present outworking of God’s providence doesn’t make sense, and they can provide a peace that is, indeed, “beyond understanding” and “not such as the world can give” (Philippians 4:7; John 14:27).

I’ve still got a long way to go before these thoughts about God and how He works out His purposes become to me, in the words of the Psalmist, “better than life” (Psalm 63:3), but I was reminded of them after Tuesday’s vote and they bid me to let go of trying to place blame for what happened.

It was as if God said, “If you must point a finger, David, then point it at Me. I alone am big enough to bring out of what you see as defeat the victory that I have been planning to bring out of that bill all along. Do you trust Me in that?”

That was enough for me. Now back to my work on marriage.

Read David’s Three-Minute Testimony Before the Senate Judiciary Committee


NOTES

  1. What follows is not to disavow human responsibility and our need as voters to know who did what that we might discharge our solemn duty before God to hold accountable those to whom authority has been entrusted. In time I will know that story more fully, at which time you will know who was really doing what and, as best I can judge, why. Rather, today’s commentary is my attempt to hold in tension without denying one for the other both personal responsibility and God’s sovereignty as reflected in Acts 4:27-28.
  2. The Westminster Confession of Faith, Chapter II, Parts I and II.

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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Picture of the Memo related to the heartbeat bill and a sleeping baby

A Constitutionally Defensible Reason for Supporting the Pro-Life ‘Heartbeat’ Bill

What is going on in the legislature between the pro-life “fetal heartbeat bill” camp and the pro-life “trigger bill” camp makes no sense to a whole lot of ardent pro-life citizens. The bills seem to be caught up in some kind of power struggle between legislators. Here, I think, is the way forward.

The Overlooked Questions

I appreciate that some well-intentioned, pro-life legislators like Lt. Governor Randy McNally think the fetal heartbeat bill is too aggressive and defense of it will be a waste of taxpayer money and effectively put that money in the hands of Planned Parenthood and its attorney. I appreciate that other equally well-intentioned, pro-life legislators like Rep. Micah Van Huss and Rep. Timothy Hill think the trigger bill is too passive.

What I do not get is the fight between these two camps. Why not be aggressive in passing legislation that might lead to the reversal of Roe v. Wade if a constitutionally grounded defense of it is available? And why not also have the trigger bill in place in the event that legislative effort fails in court?

Why Supporting the Trigger Bill Alone Is Indefensible

The reversal of Roe has to be the ultimate goal of the pro-life community. If it is not, then “pro-life” is not the correct moniker for that community. Whatever that community is, I am not part of it.

But if the reversal of Roe is the goal, it will never happen unless some pro-life law is passed and a lawsuit challenging the constitutionality of that law goes before the U.S. Supreme Court.

Depending on some other state to pass a bill and defend it on solid enough constitutional grounds to cause Roe’s reversal is why many pro-life legislators and citizens find the trigger bill too passive.

They rightly ask: Why should Tennesseans forfeit their opportunity to be pro-life leaders in the effort to overturn Roe and, instead, be content with tag-along status, following some other state’s lead and trusting that state to do things correctly?

Don’t Ignore the ‘Evidence’ Calling for Roe’s Re-Examination

Now some in the if-we’re-not-sure-we-can-take-the-Promised-Land-let’s-stay-in-Egypt camp say that putting the issue before the U.S. Supreme Court now could result in the constitutional situation being made worse.

What?! When New York is applauding the fact that Roe makes infanticide constitutionally defensible and allowable, how could things get worse?1

If that’s what the law allows and the law does not call it murder, it is time to act and use that as evidence for a constitutionally grounded argument for re-examining Roe that some pro-life lawyers have allowed the U.S. Supreme Court to ignore for far too long.

Why Opposing the Heartbeat Bill Is Indefensible

For those legislators, lawyers, jurists, and citizens who have been held captive by the notion that rights are limited to those enumerated in the U.S. Constitution and Roe-like “emanations” flowing from them, it is easy to overlook the availability of the long-dormant Ninth Amendment as a constitutional defense of the heartbeat bill (per a proposed amendment in the Senate).

For the life of the unborn and the end of constitutionally protected infanticide, it is time to turn to the promise of life’s inalienability without due process of law that was bequeathed to us by our Founding Fathers in the Ninth Amendment.

The Ninth Amendment expressly prohibits a construction of enumerated rights in the Constitution that would “deny or disparage others retained by the people.”

But if that is a constitutionally given and protected right, its prohibition should apply with even greater force to rights that only “emanate,” using Roe’s terminology, from the Constitution as a result of the “reasoned judgment” of as few as five Ivy League lawyers.

What Does the Ninth Amendment Protect?

But what are these rights that Roe’s construction of the Constitution cannot deny to others?

Washburn University law professor Jeffrey Jackson advised the following in his 2010 law review article entitled “Blackstone’s Ninth Amendment: A Historical Common Law Baseline for the Interpretation of Unenumerated Rights”:

[T]hey were those rights that the framing generation believed they inherited from English constitutional and common law, with important modifications stemming from the experiences of American colonists . . . [I]f the goal is to determine what was the general consensus among Americans at the time of the framing and the adoption of the Bill of Rights, the formulation of rights in Blackstone’s Commentaries should form the baseline.2

And what did Blackstone, who was so influential among our nation’s lawyers and jurists, say?

He said there were three “absolute rights,” meaning those “such as would belong to their persons merely in a state of nature, and which every man is entitled to enjoy, whether out of society or in it.” They were “the right of personal security, the right of personal liberty, and the right of private property.”

Blackstone then expounded the meaning of the right of personal security as follows:

The right of personal security consists in a person’s legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation.

Life is the immediate gift of God, a right inherent by nature in every individual; and it begins in contemplation of law as soon as an infant is able to stir in the mother’s womb. . . . An infant en ventre sa mere, or in the mother’s womb, is supposed in law to be born for many purposes. It is capable of having a legacy, or a surrender of a copyhold estate, made to it. It may have a guardian assigned to it; and it is enabled to have an estate limited to its use, and to take afterwards by such limitation, as if it were then actually born. . . .

This natural life . . . cannot legally be disposed of or destroyed by any individual, neither by the person himself, nor by any other of his fellow-creatures, merely upon their own authority.

However, with respect to “personal liberty,” Blackstone said it “consists in the power of locomotion, of changing situation, or moving one’s person to whatsoever place one’s own inclination may direct, without imprisonment or restraint, unless by due course of law.”3

In this light, it is clear that the kind of expansive liberty given by Roe to one human being to the fatal detriment of another human being is not that which the Ninth or the 14th Amendments protected.

Supreme Court Justice Clarence Thomas put it well:

As used in the Due Process Clauses, “liberty” most likely refers to “the power of locomotion, of changing situation, or removing one’s person to whatsoever place one’s own inclination may direct, without imprisonment or restraint, unless by due course of law.” 1 W. Blackstone, Commentaries on the Laws of England 130 (1769) (Blackstone). That definition is drawn from the historical roots of the Clauses and is consistent with our Constitution’s text and structure.4

In other words, this is not some cockamamie legal theory I’ve dreamed up in my own head. Let’s use it!

Paying for Abortion or for Protecting Inalienable Rights?

I agree with those who, like Lt. Gov. McNally, rightly do not want to see taxpayer money go to Planned Parenthood for defending the poorly written and constitutionally indefensible House fetal heartbeat bill.

But now that he and the members of the Senate’s Judiciary Committee have been given a good amendment rewriting that bill and now know that a constitutionally grounded argument can be offered in support of it, they need to ask themselves this question:

Am I willing to spend $1 to $2 million—one-half of one percent of our budget—to defend the promise of the Ninth Amendment to our Constitution that not all rights come from positive law, that some rights are inalienable without due process of law, and that the most basic right of them all is life, without which any notions of liberty are meaningless?

I sure hope they would. If you ask me, it’s a small price to pay to try to preserve our constitutionally protected God-given rights compared to the cost paid by our Founding Fathers to secure them for us.

We owe at least that much to our courageous ancestors and to those not yet born who will follow us.

Read the Memo about the Fetal Heartbeat Legislation Testimony


NOTES

  1. “Cultural elites have more recently pushed to transform the super-liberty into a super-affirmative-entitlement—a claim-right that imposes upon all of us not just a duty to abstain from interfering in abortion, but also an affirmative duty to support and even subsidize the abortion industry’s practice. This evolution is illustrated in their insistence that taxpayers must pay subsidies to abortion providers and that people of faith and well-formed conscience must be forced to pay for abortifacient drugs.” Adam J. MacLeod, “Texas Lawmen and the Lawless Court,” Public Discourse, July 7, 2016. When that happens, but I suspect the pro-life lawyers will wish we had acted now in an effort to stave that off.
  2. Jeffrey D. Jackson, Blackstone’s Ninth Amendment: A Historical Common Law Baseline for the Interpretation of Unenumerated Rights, 62 Oklahoma L. Rev. 167, 171 (2010); see also, Obergefell v. Hodges, 135 S.Ct. 2584, 2632 (Thomas, J., dissenting)(“The Framers drew heavily upon Blackstone’s formulation, adopting provisions in early State Constitutions that replicated Magna Carta’s language, but were modified to refer specifically to “life, liberty, or property.”)
  3. William Blackstone, Commentaries on the Laws of England, 119-120, 125-129 (Philadelphia: J.B. Lippincott Co., 1893).
  4. Obergefell v. Hodges, 576 U.S. ___, 135 S. Ct. 2584, 2632(2015).

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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A mom holding her baby

Just How Pro-Life Are Tennessee’s Republican Legislators?

I’m not sure I know what happened Wednesday when pro-life Republican House members split their vote and killed the pro-life bill that would impose more stringent limitations on abortion if the U.S. Supreme Court’s decisions on abortion are ever “overrule[d], in whole or in part.” I know our Republican legislators are, by and large, pro-life, and I’m thankful for that, but what is going on has made me, and many in the pro-life community, wonder just how deep those pro-life convictions run.

Was There a Substantive Problem with the Bill?

As noted, the limitations on abortion set forth in the bill, House Bill 1029, become effective upon the happening of a contingency—a change in the U.S. Supreme Court’s abortion jurisprudence—which contingency has resulted in it being called the “trigger bill.”

I support that bill. There is nothing wrong with that bill, in itself. Though a legal question about the bill was raised during the hearing on Wednesday, it was, in my view, more than adequately answered.

Assuming the adequacy of the answer was appreciated, there was no reason in terms of the substantive language of the bill relative to abortion for any solidly pro-life legislator to vote against it. Even the Republicans who voted against it would say that.

So What’s the Problem?

The issue, I fear, is being complicated by another pro-life bill that I also support in precept, the so-called fetal heartbeat bill, though, as I’ve written before, even I wouldn’t defend in court the version passed by the House.

Some pro-life legislators believe that a heartbeat bill, even if properly drafted and supported by legislative testimony, is too aggressive constitutionally. They fear it will be held unconstitutional by a federal court and $1–$2 million will be spent “in vain” trying to defend it.

Others believe the trigger bill is too passive, because it’s based on some other state having the courage and the fiscal resolve to pass and defend a law that might result in Roe being reversed.

For the ‘life’ of me, I don’t see the conflict between passing them both, assuming the Senate is willing to get the fetal heartbeat bill in as constitutionally a defensible posture as possible and the House will accept that fix.

What’s Wrong with Spending .005% of the State Budget to Seek Roe’s Reversal?

I have to ask: What is so wrong with the state making a one-time “investment” of up to $2 million to try to bring about the demise of Roe v. Wade in a total budget of more than $38.5 billion?

To put this supposedly “unconscionable” cost of defending the fetal heartbeat bill in perspective, pro-lifers need to understand that we’re talking about one half of one percent of the total state budget. The legislature has increased its own administrative budget for this year alone by way of more than $2 million, and, unlike paying a one-time legal bill, this amount will be recurring year after year.

In my opinion, legislators unwilling to spend such a paltry amount, comparatively speaking, on trying to defeat Roe are just not that pro-life.

The Trigger Bill Has Value, Too

Defeating Roe, however, is an uphill climb; thus, having the trigger bill passed and on the law books for when that day comes also seems to me a good, pro-life thing to do.

Predicting today that the legislature will be as strongly pro-life when Roe is reversed as it is now is presumptive. Passing the law now avoids that presumption and is based on a well-proven legislative axiom: It takes more work to pass a law when public opinion may be against you than to prevent the repeal of the desired law when it is already on the books. Get what you want while you can.

But some appear to be afraid that one bill will pass and not the other, and then those who “lose” will think the enacted policy is not the best one we could have had. So each “group” is trying to impose its will on the other.

Who Is Really Pro-Life?

I submit that those who are really pro-life should put aside this either/or perspective and pass them both and pass them with language that ensures their compatibility.

I am committed to doing that because trying to get Roe reversed while also making sure that if that effort fails, Tennessee has the most pro-life laws possible already on the books when that reversal finally comes, is to me the most pro-life position.

Fighting over which of the two strategies is best, when neither necessarily or logically excludes the other, is not very pro-life to me.


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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Tanco v. Haslam Final Order and silhouette of a man with a question mark

Meet My Tennessee Political Hero

Political heroes are hard to come by these days. But there is a current officeholder in our state who tops my short list. In a lineup of random politicians, you might never suspect he’d be a political hero. Let me introduce you to him and tell you what he did.

Unlikely Looking Hero

My political hero is 77-year-old Bradley County Commissioner Howard Thompson. His formal academic education ended with his high school diploma (which only matters if your name is Lori Loughlin or Felicity Huffman). He drives a pick-up truck as part of his flea market business, not as a political “common man” ploy.

What makes him a hero is that he was willing to do something out of the ordinary that he knew would be misunderstood by most, including his fellow commissioners, in order to defend what he believes.

What My Political Hero Believes

Lots of Tennesseans and elected officials, including, I suspect, most of his fellow commissioners, believe like Commissioner Thompson. He believes:

• marriage is a relationship between a man and a woman,
• both the U.S. Constitution and the Tennessee Constitution should be upheld,
• the dual sovereignty of state and federal governments established and protected by those constitutions is important, and
• the separation of powers taught in eighth-grade civics means courts don’t make laws.

What Makes Him a Hero

But the difference between Commissioner Thompson and other political officials was his willingness to take a measured, strategic, and non-revolutionary state-militia-at-the-courthouse approach to defending those beliefs.

As a “lowly” county commissioner and citizen, he did the only thing he could do to defend his beliefs (and probably those of most of his constituents)—sue his own county’s clerk for violating the Tennessee Constitution by issuing a license for marriage to two people of the same sex.

Before you think that qualifies him for quack status, not hero status, read on. His understanding of basic civics and willingness to act on his beliefs is what separates him from other politicians.

Thompson Understood What Most Didn’t

Commissioner Thompson is a gentle, humble soul who would never impugn the integrity of his local county clerk or his fellow commissioners, but he understood the constitutional gravity of what began taking place the day the U.S. Supreme Court announced its decision in Obergefell v. Hodges.

That decision purported to say that the 14th Amendment prohibited state laws that defined a marriage as a relationship between a man and a woman.

Even if this conclusion is accepted, Commissioner Thompson intuitively knew that our whole state was acting lawlessly. The lawsuit proved him right, even though the presiding judge dismissed it last week.

Tennessee’s Constitution Is Being Ignored by All but the Commissioner1

Page 2 of the Tanco Final Order and Permanent Injunction, signed by Judge Trauger.

Page 2 of the Tanco Final Order and Permanent Injunction, signed by Judge Trauger.

He was proved right by the Final Judgment and Permanent Injunction issued by federal district court Judge Aleta Trauger after and as a result of the Obergefell decision in the same-sex “marriage” lawsuit that had been filed against the state of Tennessee, Tanco v. Haslam.

The second page of Judge Trauger’s order says, in full:

Article XI, section 18, of the Tennessee Constitution and Tennessee Code Annotated § 36-3-113 are invalid under the Fourteenth Amendment to the United States Constitution to the extent that they exclude same-sex couples from the recognition of their civil marriage on the same terms and conditions as opposite-sex couples, when their marriage was lawfully entered into out of state.

The “to the extent” language means the injunction applies only to the provisions of Tennessee’s laws that govern the state’s recognition of marriages “lawfully entered into out of state” when that out-of-state couple moves here.

Thus, the injunction does not apply to the provisions of the Tennessee Constitution and the referenced statute, Tennessee’s Defense of Marriage Act, that govern what laws the state can have for the licensure of marriages, the licenses being issued by Tennessee’s county clerks.

That means those provisions of our state’s constitution limiting the power of the state to license anything other than a marriage between a man and a woman are still in force. And those provisions will lawfully be in force until some judge enjoins their enforcement or the people vote to repeal the amendment.

Since neither of those things has happened, all of Tennessee’s county clerks are going beyond the statutory authority they have been given by issuing a license for a relationship called a marriage that is defined without regard to the biological sex of the parties.

And they are doing so in violation of the still-applicable provisions of Tennessee’s Constitution.

When Did Courts Start ‘Making Laws’?

I know some will foolishly say, “But the U.S. Supreme Court ruled. The Court legalized same-sex marriage. You can’t deny same-sex couples their rights.”

Such is foolish because they, including many lawyers and judges, have forgotten what Commissioner Thompson remembered from his eighth-grade civics class, “Courts can’t make laws.”

If a license for this new understanding and form of marriage is to be issued by the state, then the state’s legislative body must authorize somebody to issue it. Judges can’t, and county clerks weren’t.

By the express terms of Tennessee’s Constitution, county clerks’ duties can only be “prescribed” by the General Assembly.

But the General Assembly has never prescribed to our county clerks any duty to issue a license for a relationship defined without regard to the biological sex of the parties, even if U.S. Supreme Court now wants to call that kind of relationship a marriage.

If people would just think about it for a moment, they’d realize that being authorized by statute to issue a license for a relationship defined in terms of the biological sex of the parties is fundamentally and logically not the same as having authority to issue a license for a relationship defined without regard to the biological sex of the parties.

Commissioner Thompson understood these basic constitutional principles and he stood up for them, or at least he did until the judge said he didn’t have a right (“standing” is the legal term) to bring suit to stop this lawlessness.

Not in Vain

But, Commissioner Thompson, don’t despair. In the coming months, I trust you will find that your heroics have not been in vain.

If you now appreciate what Commissioner Thompson did and want to be part of stopping the lawlessness, let me know by sending an email to FACT Director of Communications Laura Bagby at laura.bagby@factn.org and be sure to put “Thompson” in the email subject line. Just don’t expect all your friends to consider you a hero if you do.

NOTES

  1. Actually, Commissioner Thompson’s pastor, Guinn Green, understood and joined him in the lawsuit, as did a couple of pastors and citizens who filed a similar lawsuit in Williamson County. But Commissioner Thompson is the only elected official among them and therefore the only one that risked any political heat.

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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Silhouettes of judges and ballot box and photo of Attorney General Slatery

The Most Important Legislation You Haven’t Heard About

Tennesseans understandably tend to put their political focus on hot topics such as abortion legislation. But little attention has been given to what I think is one of the most important pieces of legislation going through the General Assembly, a proposed amendment to Tennessee’s constitution governing the office of the Attorney General and Reporter. Few realize the influence of that office or how little influence anyone has on that office.

The Influence of the Office on the State’s Judges

Many do not recognize the influence the attorney general has. Some are aware of high-profile things such as the current attorney general’s unwillingness to defend the state’s sovereignty protected by the 10th Amendment relative to the federal refugee resettlement program. But what they may not appreciate is the influence of the attorney general on the state’s judges.

For example, two years ago, a Knox County judge rightly ruled that the word “husband” in a statute didn’t include a woman’s wife in a same-sex “marriage” between two lesbians. A woman is never a husband and vice versa.

But the attorney general’s office came into court and argued that the word “husband” only meant spouse. This, according to the attorney general, was necessary in order to accommodate the U.S. Supreme Court’s new understanding of marriage in which male and female are irrelevant.

The judge uncritically accepted the attorney general’s argument. To interpret “husband” in a manner that includes a “woman” is judicial legislation pure and simple, and it was done at the behest and urging of the attorney general.

The Influence of the Office on Public Policy

But the attorney general not only has significant influence among judges, he can also influence a change in public policy through his opinions.

Last month, in keeping with the attorney general’s acquiescence to the new norm of confusing biological sex with the psychological construct of gender, the attorney general issued an opinion stating that when the legislature 19 years ago used the word “gender” in a statute instead of the word “sex,” the legislature intended to include today’s modern concept of gender identity. Fat chance of that, given that I was there and remember the discussion and vote on the bill he misconstrued.

But the opinion was requested by Democrats as a means of finding out whether they needed to pursue or forego legislation that would have specifically added “gender identity” to that statute. Why would this opinion signal to them that their legislation was now unnecessary? Because they know attorneys and judges will use the opinion to usher into our law the idea that “gender” and “sex” are not only the same thing, but also the idea that gender includes gender identity.

The Influence of the Office on the Legislature

Lastly, the favorite tactic of those seeking to kill legislation is to get an attorney general’s opinion as to whether the proposed legislation is constitutional. The attorney general’s opinion may be accurate, but too many legislators, most of them being non-lawyers, are too quick to accept his or her opinion as the truth. However, they may not appreciate that someone with a different jurisprudential and constitutional philosophy might issue a different opinion.

Nevertheless, good legislation may not be approved. After all, the thinking goes, why pass a law if the person tasked by law to defend the law says, in advance, he or she won’t defend it?

The Current Lack of Accountability by the Attorney General

Given the influence of the attorney general and his or her office, accountability would seem to be imperative. Yet there is an utter lack of such due, in large part, to the provisions in Tennessee’s constitution.

The state constitution provides that the attorney general is to be appointed by the members of the state Supreme Court. Tennessee is the only state in the union to use this method. In more than 40 states, the attorney general is elected through a statewide contested ballot. Moreover, the justices in Tennessee vote by secret ballot.

Since voting out state Supreme Court justices who vote in a bad attorney general is impossible due to the fact they are subject only to retention elections, neither the attorney general nor anyone else can be held accountable for his or her decisions and actions.

The lack of any accountability is a recipe for troubles mentioned above.

What the Amendment Would Change

The proposed amendment, Senate Joint Resolution 1, would change this process in three ways. Firstly, instead of just appointing someone to the office, the justices would only nominate someone. Secondly, the justices would have to vote for the nominee in public. And thirdly, a majority of the House and a majority of the Senate would have to confirm the nominee.

This is the process the people approved relative to open positions on the Tennessee Supreme Court. I saw it work well when current Justice Page was nominated by former Gov. Haslam. Legislators asked good questions and pressed for answers.

To me, this is a good means of providing accountability, though indirect. Citizens can quiz the candidates for the legislature on what kind of person they would want to hold this office and then hold them accountable if they don’t put that kind of person in the office.

Direct election of an attorney general, on the other hand, has proved to be a stepping stone to a run for higher office, and, consequently, the attorney general’s decisions become even more political. When politics becomes paramount to re-election or to the office next to be sought, the correct legal analysis and decision often give way to what is politically expedient.

Conclusion

It is always good to give attention to legislation that will make a particular change in regard to a particular matter, but we dare not ignore those matters of government structure that may influence or determine the outcome of the legislation on which we are focused. We might say, as with any house, what is allowed to happen in the House (and Senate) will depend on the infrastructure that underlies it.


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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