On Taking Constitutional Notice — or Winking and Nodding

Article VI, Section 3 of Tennessee’s state constitution has received a fair amount of attention in the Legislature during recent years. A lot of other provisions in the venerable and debatable document have not.
The much-noted sentence says, “The judges of the Supreme Court shall be elected by the qualified voters of this state.” The key word for discussion is “elected.”
By the standard doubtless understood in 1870, the date of the most recent wholesale rewriting of our constitution, elected would likely mean having candidates for Supreme Court justice run against one another with the winner taking office.
They do not so compete, of course. The Legislature has provided instead that Supreme Court judges are appointed by the governor from a list of nominees submitted by a commission. Voters only get to choose “yes or no” on whether the governor’s appointees get a new term after the appointment expires.

Now, a specially-selected panel of Supreme Court judges ruled years ago that the system’s yes-no vote, a so-called “retention election,” passes constitutional muster. A substantial number of conservative people today disagree.
Lt. Gov. Ron Ramsey calls it a “wink-and-nod” decision that violates the constitution, even through agreeing that the appointive system is a far better way of choosing judges than combative partisan, free-spending contests.
In 1870, “qualified voters” referred only to males. That has since been broadened by constitutional amendment to cover the other gender, provided – starting on Jan. 1, according to the latest legislative pronouncement – that any voter must have a qualified government-issued photographic identification.
It’s doubtful the drafters in 1870 had photo ID in mind, but that has not received much attention. There has been no constitutional amendment on photography and identity for voting.
Another provision of the state constitution got a mention – but not much more than that – during this year’s debate on tort reform. Article I (our state ‘Bill of Rights), Section 6, says “the right to trial by jury shall remain inviolate.”
The new tort reform law declares that juries cannot decide to give an injured party more than authorized by the Legislature. Arguably, that means the right to trial by jury is no longer inviolate. At least not in the way things stood when the constitution was written and judges were elected.
As with appointed judges and photo ID, violation of that aspect of a right to trial by jury is apparently OK in Legislatorland. (An analogy can be made to legislative restrictions on what a jury can do in criminal caes — i.e., setting limits on sentences lengths. But a separate set of constitutional rights applies to defendants in criminal cases that is not involved in juries civil case decisions.)
Other state constitutional provisions — read as an ordinary person would read — would appear to ban laws to benefit a single individual, a single county or city or a single corporation. But legislators have found ways to sidestep the apparent meaning to accomplish an objective, often with the court system collaborating through its interpretations.
The flap over ‘elected’ justices had much of its impetus in a 2000 Supreme Court decision that interpreted our constitution to grant women greater rights to an abortion than does the U.S. Constitution.
The word ‘abortion’ is not mentioned in the state constitution. Neither is “right to privacy.” But the 2000 decision cited seven provisions of the constitution that “without question” indicate a right to privacy was envisioned by framers who “foresaw the need to protect individuals from unwarranted governmental intrusion.”
To perhaps oversimplify, the court then declared that the inherent right to privacy includes a right to abortion and the Legislature cannot unduly burden that right.
The primary legislative response, after more than a decade of effort, was a constitutional amendment – to be submitted to qualified voters for a yes-no referendum in 2014 — that inserts the word abortion into the constitution in a manner that will allow the Legislature to place burdens upon the procedure. A secondary response was criticism of the Supreme Court that ties into the ‘elected’ controversy.
By quick count, there were 38 other proposed constitutional amendments filed in the Legislature this year – including several duplicates — that did not advance. But they can be brought up next year.
One of those is Ramsey’s proposal for legitimizing the present system of appointing judges via constitutional amendment. It is a good candidate for getting some attention next year.
Another by Sen. Jack Johnson would insert into the constitution a requirement that judges “strictly construe the enacted text of any constitutional provision and any statute or other law in interpreting or applying the law of Tennessee.”
Just a guess, but it probably won’t get much attention. If judges started strictly construing things the Legislature does, subject to judicial interpretation of ‘strictly construing,” that could bring more attention than desired in the new normal of Legislatorland.

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