Duplicity and Disdain for the Constitution

The plaintiffs who recently filed a lawsuit to enjoin passage of Amendment 1 have unwittingly shown their duplicity and their disdain for both the people of our state and our constitution.

Amendment 1 was necessitated by a ruling of the state Supreme Court in 2000 that “found” a right to abortion in our state constitution. Amendment 1 essentially reversed the state Supreme Court’s ruling. Now the plaintiffs argue that the votes on the amendment were not properly counted because election officials counted all the votes “the people” cast on the amendment, not just the votes of “the people” who voted for a gubernatorial candidate.

I put the words “the people” in quotes because they are central to the provision of the constitution on which the plaintiffs rely to disqualify the votes of people who didn’t vote in the gubernatorial election, which is potentially thousands of voters. The provision reads as follows:

“And if the people shall approve and ratify such amendment or amendments by a majority of all the citizens of the state voting for governor, voting in their favor, such amendment or amendments shall become a part of this Constitution.”

To properly interpret that provision, the whole of the constitution should be examined, and there is one other place in the constitution that speaks to amendments to the constitution. It’s Article I, Section 1, which provides, in pertinent part:

“All power is inherent in the people; . . . they have at all times, unalienable and indefeasible right to alter, reform, or abolish the government in such manner as they may think proper.” (emphasis added)

Since our government is framed by our constitution and amendments are the means by which we “alter” or “reform” it, then the power to amend the constitution clearly belongs to “the people.” And the provision relied on by the plaintiffs does nothing to change that inasmuch as it begins with, “the people shall approve and ratify such amendment or amendments.”

In other words, the whole of the constitution, giving meaning to all the words in the constitution, means that “at all times” the power over the constitution belongs to all “the people” and not just to the people who choose to vote in a gubernatorial election, as the plaintiffs argue.

Given the clear statement that amendments are to be approved by “the people,” what are we to make of the language about votes in the governor’s election? We are to make of it exactly what the state has said for years—it establishes a minimum number of votes that an amendment must receive to be adopted.

The Framers clearly did not want a minority number of “the people” to change the constitution that governs all the people. Yet that is exactly the result if the plaintiffs’ interpretation is correct; it can lead to an absurd result.

Assume 1,000,000 vote for an unopposed gubernatorial candidate (which some might say is pretty close to the choice we just had), and 600,000 of them vote for an amendment while the other 400,000 vote against it. Then assume another 1,000,000 Tennesseans, inflamed against the amendment, vote against it. The total votes on the amendment are 600,000 in favor and 1,400,000 against it.

According to the plaintiffs’ theory, the amendment is approved! That’s because the other 1,000,000 votes against it don’t count: those “people” don’t count because they didn’t vote for a gubernatorial candidate.

The bottom line is this. When it is something they want, like a constitutional right to abortion, the plaintiffs praise judges who find words in the constitution like “privacy” and “abortion” that simply are not there.

Then, when the people, by popular vote, repudiate the imaginations of judges that find words in the constitution that aren’t there, the plaintiffs sue based on a myopic reading of only certain words that are there to the exclusion of other words.

So, the plaintiffs want to make up and “insert” into the constitution words they like and ignore the ones they don’t like. In doing so, rather than showing their respect for the “people” and the constitution, the plaintiffs have shown their duplicity and their disdain for both.

This blogpost first published in The Tennessean, Opinion section, November 13, 2014.

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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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