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Editor's notebook: Constitutional comprehension — or lack thereof • Tennessee Lookout [1]

['J. Holly Mccall', 'More From Author', 'February']

Date: 2024-02-29

Tennessee’s legislative Republicans sure like to talk a big game about the sanctity of the constitutions — both the country’s and Tennessee’s — but adhere only as long as it suits their purposes.

Take the latest House measure likely to bump into a potential legal obstacle.

Goodlettsville Republican Johnny Garrett is sponsor of a measure that would prohibit lawmakers who have been expelled from the legislature for disorderly behavior to be reappointed by a local legislative body.

It’s not a coincidence Garrett is carrying the bill, as he led the expulsion hearings in April of three of his colleagues: Democratic Reps. Justin J. Pearson of Memphis, Justin Jones of Nashville and Gloria Johnson of Knoxville. Johnson escaped expulsion by one vote, but both Pearson and Jones were bounced on party-line votes and then reappointed by their home city councils within a week.

I’ve long thought Tennessee Republicans don’t care about legal advice or the state constitution: even if their laws get overturned in court, at least they had fun owning the libs.

On Monday night, House Republicans backed Garrett’s bill with a 69-22 vote to approve, despite legal counsel for the State House Government Committee having advised lawmakers that it’s unconstitutional. Lt. Gov. Randy McNally said that he, too, has concerns about the legality of the measure.

I’ve long thought that state Republicans just don’t care about solid legal advice; the game is to throw all the spaghetti at the wall and if a law gets challenged and loses in court — oh well! They still had fun owning the liberals.

That Garrett is a lawyer doesn’t slow him down an iota. He and I shared a panel last fall in which we addressed the friction between state and local governments and in particular, state Republicans’ desire to punish predominantly Democratic Nashville for shooting down the 2024 Republican National Convention and to seize control over the city, which thanks to a booming tourist economy has become the state’s cash cow.

Why, I asked Garrett at that time, does the legislature continue to pass laws that habitually get struck down on grounds of unconstitutionality? He shrugged and responded with something along the lines of ‘you can’t be concerned about what the courts might do when you are passing laws.’

Call me naive, but in fact I do think contemplating whether a bill will stand up to constitutional muster would be an intelligent strategy.

But Garrett’s bill isn’t the only instance of such a cavalier attitude. I rounded up a short list of some of Tennessee’s laws overturned by courts in the last couple of years on the grounds they aren’t constitutional:

In March 2022, a three-judge panel ruled that a longstanding practice of conducting warrantless searches on private property violates the Tennessee Constitution’s property protections. ( Judges strike down Tennessee law allowing warrantless searches , March 23, 2022)

Later, the Tennessee Supreme Court struck down as unconstitutional a state law requiring a life sentence for juveniles convicted of felony or first-degree murder. ( Landmark TN Supreme Court decision finds mandatory life sentences for juveniles unconstitutional , Nov. 18, 2022)

Last June, a federal judge overturned a new law that would have prohibited drag performances in public spaces, ruling it violated the separation-of-powers principle and chills speech protected through the First Amendment. (Federal judge overturns Tennessee’s ban on drag shows, June 3, 2023.)

This isn’t an exhaustive list. In fact, I first wrote about the Tennessee Republican propensity to challenge the limits of Tennessee’s constitution three years ago, and since then, one measure to amend the document has passed by ballot, while House Speaker Cameron Sexton and Senate Majority Leader Jack Johnson are pressing for another constitutional amendment.

State Republicans at both the elected and rank-and-file levels like to talk smack about the state of California, using the phrase: “Don’t California my Tennessee.” Aside from the irony that many current Republican leaders hail from other states — Johnson is a Texas native; we don’t blame him at all for coming here — there’s even greater irony that they are so keen to tack amendments onto our constitution.

We are still a far cry from California’s 523 constitutional amendments, but Tennesseans have approved all 11 amendments tested by ballot since 1995. Seven of those have been brought by Republicans, including 2014’s Amendment 1, which ensures the constitution gives no right to an abortion.

Now, Sexton and Johnson propose an amendment that would allegedly give judges greater leeway to deny bail to violent criminals. Opponents say the measure is unnecessary.

“The Tennessee Constitution is not the problem,” said Josh Spickler, an attorney who leads JustCity Memphis, an organization working toward solutions to systemic criminal justice issues. “Judges have plenty of discretion as it stands to make bail decisions. They have discretion to set unaffordable bail in certain circumstances as long as they follow the law and the constitution.”

The key words from Spickler are ‘follow the law and the constitution.’ Turns out Tennessee Republicans aren’t so much about following the Tennessee Constitution as they are bending it to their political will.

If one claims to support the constitution but in reality subverts it at any opportunity, that, friends, is hypocrisy of a gross kind.







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