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Tennessee Asserts Sovereignty on Amendment 1

As you probably know, the chair of Planned Parenthood of Middle Tennessee and some of its supporters filed a federal lawsuit this past summer to enjoin passage of Amendment 1, which voters adopted in November of last year. Planned Parenthood’s supporters argued the state Election Commission did not count the votes the way the state Constitution requires. However, in recent months the state took the fight to them and won a great victory in Court last week.

In September, Secretary of State Tre Hargett and Mark Goins, Coordinator of State Elections, filed suit in the Chancery Court of Williamson County asking the state courts to declare whether the state had counted the votes correctly under the state Constitution.

I have written on this subject before, stating that the question of how the state Constitution is to be interpreted is a matter for the state courts to decide, not a federal court. But arrogant federal District Court Judge Kevin Sharp decided he would decide for Tennessee how its Constitution should be interpreted

Thankfully, the state essentially said, “Enough of that, Judge Sharp. We gave you a chance to do the right thing by declining to interpret our state Constitution, and you choose wrong. Now we’ll see the Planned Parenthood folks over in state court.”

This suit was a great exercise in giving recognition to the dual sovereignty that exists under our federal government.

States are still sovereign governments under the U.S. Constitution, and their courts have every bit as much constitutional authority to interpret the state and federal constitution, as do the federal courts. Of course, when the state Supreme Court disagrees with the U.S. Supreme Court, you have a problem, but not until then.

Tennessee’s Not Alone in Asserting Its Sovereignty

This legal point regarding state sovereignty was ably and rightly demonstrated last March when a single federal district judge ruled that all of Alabama’s probate judges had to start issuing same-sex “marriage” licenses. The Alabama Supreme Court stepped in and ordered all the probate judges who were not actually parties to that particular federal court lawsuit to continue following Alabama’s marriage law.

Liberals decried the Alabama Supreme Court’s decision, but that’s all they could do, cry. The Court was correct, and eventually the same-sex “marriage” advocates realized all they could do was wait to see what the U.S. Supreme Court would say in the Obergefell v. Hodges case.

Just Say No to Federal Government Overreach

So back to the Amendment 1 lawsuit in state court. The abortion advocates moved the state court to dismiss the state’s lawsuit and, essentially asking the state court to defer to the federal court, to let the federal court handle the decision. To the credit of Judge Binkley, he said, “No thank you. The state is equipped to handle these kinds of cases, so we’ll just all proceed full speed ahead.”

That decision was as it should be. We can thank our Secretary of State, Election Coordinator, and Attorney General for asserting our state’s rights on this issue of state law. It was a creative way to tell the pro-abortion crowd that Tennessee is not going to let them use the federal government to dictate to us if we can find another way.

Now let’s hope our Attorney General will put on that same creative thinking cap to find a way to say to the federal government we’re not going to let you shove us around when it comes to refugee resettlement and to marriage, two issues that are looming as the legislature prepares to return for session in January.


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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Immigration, Abortion, and the Missing Virtue

President Obama takes executive action on immigration, and some Congressional leaders promise to do whatever it takes to stop him. Amendment 1 removes the judicial impediment to abortion regulations, and some pro-life state legislators may want to make up for “lost time” in regulating abortion. As I considered the two situations, a word seldom used anymore kept coming to mind.

That word is prudence. It is known as one of the four cardinal virtues. And it is virtue particularly needed at a time when the vast majority of Americans distrust their government and politicians. Without prudence, that distrust will only grow, and without trust, our government cannot function well.

Prudence Defined

Prudence was defined by Noah Webster in his famous 1828 dictionary as follows:

“Prudence implies caution in deliberating and consulting on the most suitable means to accomplish valuable purposes, and the exercise of sagacity in discerning and selecting them. Prudence differs from wisdom in this, that prudence . . . is exercised more in foreseeing and avoiding evil, than in devising and executing that which is good . . . .”

Or, as Webster summed it up in the last sentence of his definition: “Prudence is principally in reference to actions to be done, and due means, order, season and method of doing or not doing.”

Immigration

In the case of immigration, prudence is certainly needed. Our immigration “situation” is a mess. There are legal, constitutional, philosophical, theological, and practical issues to be considered. The impact of any policy will be great and far reaching. If a pebble thrown in a lake causes ripples vastly disproportionate to its circumference, then action on immigration is by comparison a boulder thrown into a pond.

That the President thinks he knows what is right and is willing to do it even if it is contrary to his previously expressed understanding of his limited constitutional authority is clear evidence that he lacks prudence.

That some Republicans, in an exercise of bravado and playing to their base, start saying they will do whatever it takes to stop him could lead to counterproductive actions and more government distrust if prudence is not exercised.

In saying that, I don’t mean that nothing should be done on immigration or that unconstitutional exercises of authority should go unchecked. But prudence dictates that there be serious deliberation and consultation in order to determine the “due means, order, season and method” of approaching an unavoidable issue and reigning in the president.

Abortion

And in Nashville prudence should dictate how pro-life legislators proceed after the passage of Amendment 1.

Public polls and campaign internal polls showed that well over 60% of Tennesseans believed a woman should be fully informed prior to an abortion, have time to consider that information absent life-threatening exigent circumstances, and know that the clinic she went to was licensed and inspected by the state health department. So, the prudent legislator would ask, “If that’s true, then why did the amendment only pass with only 53% of the vote?”

Having been intimately involved in the campaign, I can give you my opinion. The ten percentage point difference was a reflection of people’s distrust of their government and politicians and their application of that distrust to specter raised by opponents that the legislature would go “too far” in regulating abortion, beyond what they were ready to accept.

In that atmosphere of distrust and fear of government interference, prudence might consider how the cause of life can best be advanced over the long haul, not just in the short run. Whether prudence or being seen by others as the most pro-life legislator will win the day remains to be seen.

Conclusion

Prudence is in short supply in politics these days. And perhaps it’s because politicians cast prudence aside to placate the frustration of voters with gridlock. But as an old legislative colleague of mine used to say, “Sometimes you can get there faster by going slower.” Advice some of our current politicians would do well to heed.


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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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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FACT Report: November 12, 2014

Three Wins in Three Days (November 12, 2014)

Three big wins in three days.

First, the people approved Amendment 1, effectively allowing our state legislature to re-enact common sense abortion regulations struck down by our state Supreme Court decision 14 years ago.

Second, a state Court of Appeals upheld a law that prohibits local governments from requiring private businesses to give special rights to citizens beyond those protected by state law. For example, the law keeps local governments from making private businesses extend special rights based on sexual orientation and gender identity.

Third, the Sixth Circuit Court of Appeals upheld Tennessee’s definition of marriage. It was the first federal Court of Appeals win for marriage after four other circuits said the constitution required “gay marriage.”

With three victories in three days, it was almost as if a Triune God was reminding us that He is still on His throne.

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Amendment 1 and the ‘Government Interference’ Fallacy

Just as “marriage equality” has become the campaign theme for those trying to turn marriage into something it isn’t, “stop government interference” has become the theme for opponents of Amendment 1 to turn it into something it isn’t. Surely, they aren’t really against government interference.

Being against government interference certainly has an attractive ring to political conservatives who want less government. And, of course, that is what Planned Parenthood with its “government interference” mantra wants conservatives to think. But hopefully conservatives will do just that—think!

Government is, by definition, a form of interference. When something is governed, it has order and it has limits.

It’s not like we really want to stop government interference completely. Like me, you want the civil government to interfere when someone’s jeopardizing your life or property. The truth is, we all like the kind of interference we think is appropriately within the civil government’s jurisdiction, and we don’t like the interference we think is outside its jurisdiction.

For example, polls show that most opponents of Amendment 1 are Democrats. But Democrats love government inference! They love to regulate everything. They want the government to regulate health care in general. Ever heard of Obamacare?

Obamacare interferes in the kind of health procedures an employer’s health insurance policy must provide. That is government interference in health care. And I guarantee you the opponents of Amendment 1 don’t want the government to repeal the “interference” the abortifacient mandate under Obamacare is to some Christian employers.

So the real question is what kind of things should civil government interfere with? That is where I really question some of the ministers who have talked as if Amendment 1 is depriving a woman of a God-given choice.

First, if you’re a minister, you have to know there is a difference between the free will to make a choice and whether a choice is one that is generally permitted in a civilized society. God and civil government both say that some choices are not okay, like murder. Like stealing. Like lying under oath. Do these ministers oppose government interference when it comes to those choices?

Oh, but they say, “Those choices affect another human being.” But that is the question, isn’t it? Is this living being in a mother’s womb with a DNA and circulatory system of its own not that of its mother of the same essence as the minister? Of course.

Yes, they again counter, “But ‘it’ can’t survive without the “life support” provided by the mother. Ah, but can any of us “its” survive long if someone is unilaterally allowed to deprive us of the things we need for our continued existence, like nutrition and oxygen?

I hope none of these ministers who are against government interference ever ask for government assistance if they are too frail to care for themselves. The golden rule would say that they should be treated the same as the little ones around whose necks they are now casting the abortion millstone.

But, really, these arguments over the rightness or wrongness of abortion are beside the point when it comes to Amendment 1. Amendment 1 cannot take away the right to abortion given by the United States Supreme Court.

Opponents of Amendment 1 are hoping you won’t think about that. And they hope you won’t think about what government interference really means in this situation.

So, if you don’t know what “government interference” means when Planned Parenthood says it, here it is; it means you are okay with:

  • some women continuing to make life-altering, irreversible medical decisions without the assurance they have been fully informed about the procedure and their options,
  • that decision being made on the spot in non-emergency situations, and
  • another human being’s life being taken under those conditions.

Well, that’s not something, as a conservative, I’m okay with for the sake of the woman or the unborn child. So, in this instance, I’ll accept a little “government interference.”


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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