Constitution of Tennessee

The Constitution of the State of Tennessee defines the form, structure, activities, character, and fundamental rules (and means for changing them) of the U.S. State of Tennessee.

The original constitution of Tennessee came into effect on June 1, 1796, concurrent with the state's admission to the Union. A second version of the constitution was adopted in 1835. A third constitution was adopted in 1870 and is the one still in use today, with subsequent amendments.

History

1796 constitution

The original Tennessee state constitution was not submitted to the voters for approval, but rather was approved by Congress in conjunction with the resolution admitting Tennessee as a state. It went into effect on June 1, 1796, when Tennessee entered the Union.

The first constitution was widely criticized as giving the executive, a presumably full-time governor, insufficient authority and investing too much authority in the legislature, a part-time body. This was cited as a primary reason for its replacement.

The 1796 constitution also did not create a state supreme court, providing only for "such superior and inferior courts" as the legislature should create, with judges elected by the legislature for indefinite terms.[1]

In spite of its shortcomings, the original document had its admirers. Thomas Jefferson described Tennessee’s as the “least imperfect and most republican of the state constitutions.” [2]

1835 constitution

The second version of the Tennessee State Constitution was adopted in 1835.

The second Tennessee State Constitution, adopted in 1835, resulted from a state constitutional convention that convened in Nashville on May 19, 1834, with 60 delegates in attendance. William Carter of Carter County presided over the 1834 convention.[3]

Antislavery interests petitioned the convention to abolish slavery, a proposal that was rejected by the convention delegates. The constitution that they adopted increased opportunities for citizens to engage in the political process, but it limited suffrage to white males. Similarly to other southern states, such as Virginia, they disfranchised free black men, who had had the right to vote under the 1796 constitution. This action followed fears raised by the 1831 Nat Turner slave rebellion.[3]

The second constitution provided for a state supreme court, to consist of three judges, with one judge from each grand division of the state. Judges were required to be at least 35 years old and would serve 12-year terms.[1]

The constitution was ratified by voters in March 1835, receiving 42,666 votes in favor to 17,691 against.[3]

1870 constitution

The Tennessee General Assembly, on November 15, 1869, called for an election to be held in December 1869 for two purposes: to determine if a Constitutional Convention should be called for the purpose of amending or replacing the 1835 constitution, and to elect delegates to that convention if the voters determined that it was to be held. The voters deciding in the affirmative, the convention began on January 10, 1870. The convention adjourned on February 23, 1870, having adopted the constitution and recommending its approval by the voters in a special election, which was conducted on the fourth Saturday in March 1870.

The third document was largely written as a response to the requirement that all of the readmitted ex-Confederate States adopt new constitutions explicitly banning slavery. It contains many provisions which are verbatim holdovers from the two predecessor documents. It is considerably longer than the United States Constitution but not particularly long by the standards of state constitutions. This 1870 document stood unamended until 1953, which, according to the Tennessee Blue Book, was the longest period that any such document had remained in effect without amendment anywhere in the world.

Main provisions

The constitution's preamble is much longer than its counterpart in the United States Constitution. Much of that length is devoted to justifying the authority behind the new constitution — that the new constitution was created under the authority of the constitution of 1835, and that the 1835 constitution was itself created under the authority of the 1796 convention.

Declaration of Rights

Article I, is Tennessee's bill of rights. It mimics many of the U.S. Bill of Rights, although the provisions describing them are generally much lengthier than those of the U.S. Constitution. The provisions in this article state:

Sections 16 and 27, amongst others, are directly copied from the United States Constitution.

The article's provisions regarding slavery are also significant, as they both prohibit slavery in the same manner as the Thirteenth Amendment to the United States Constitution, and forbid the legislature from making any "law recognizing the right of property in man"; some construe the latter provision as prohibiting any form of indentured servitude.

Less usual declarations

Besides the more common human rights, a few other rights are enumerated:

Separation of powers

Article II of the constitution states that there are to be three separate branches of government: legislative, executive, and judicial. It also explicitly states that no one from one is to exercise rights belonging to any of the others, something considered implicit in the national constitution, or inferred by its interpreters (Sections 1 and 2).

Legislative branch

The lawmaking power of the state is given to its Legislature, named the General Assembly, whose upper house is the Senate and whose lower house is the House of Representatives (Section 3).

The basis for legislative representation is population, as determined by the United States Census; however the General Assembly can always use other, non-population factors to apportion one house (the Senate) unless the U.S. Constitution is currently authoritatively interpreted to forbid this (as it currently is under Reynolds v. Sims) (Section 4).

The lower house is fixed at 99 members, which are to be divided up among counties; if one county has more than one Representative (which is guaranteed to happen, there being 95 counties), the affected counties shall be divided up into districts, causing all representatives to be elected from single-member constituencies. A county may not be split into separate counties in order to do this. (Section 5 and subsection)

The upper house is to be set up in the same manner, except that its size is variable, up to ⅓ of the size of the lower house, which was fixed at 99 as noted above. In practice the Tennessee Senate has always consisted of 33 members, the maximum allowable under this provision. (Section 6 and subsection)

The first election to the Legislature was to take place on the second Tuesday of November 1870, and after that every two years, on the first Tuesday after the first Monday, and all such elections shall take place only on that day. (Section 7)

Representatives have to be 21 years old, U.S. citizens, a state citizen for three years, and a county citizen for at least one year before election day (Section 9). Senatorial requirements are different only with the requirement that senators be at least 30 years old. And no one from either house can be appointed to any office by the executive or legislative branches, unless it is as a "trustee of a literary institution". (Section 10)

Either house may imprison people (whether a member or not) who disrupts their proceedings. (Section 14)

The legislative provisions include the requirement that no bill may be broader than its caption and that it may only contain one subject (Section 17). To this point, Tennessee courts have interpreted this to mean that no bill can contain non-germane material, and that no caption can include the words "and for other purposes" (which can and does occur in Congress). The General Assembly, therefore, can pass no "omnibus" bills.

Also banned were some business practices which had previously gotten the state into trouble, such as allowing municipalities to loan money to railroads in order for them to pay off bonds on which they had previously defaulted (Section 33) and the election or appointment of people while they were still responsible for public money (Section 25).

Section 28 describes the General Assembly's power to levy taxes.

For a municipality to issue bonds or borrow money on behalf of a private business or individual was in the future to be allowed only with the passage of a referendum with the unusually stringent provision of a three-quarters majority, although the effect of this was to be delayed for ten years in 26 named counties where the requirement would be a simple majority until then. The period between May 6, 1861 and January 1, 1867 was not to be counted against any statute of limitations, as civil government in much of the state had broken down during that period owing to the Civil War.

Executive branch

Article III allows the governor to serve a two-year term, a provision superseded by 1953 amendments. The executive branch is empowered with a line-item veto, but a majority of all members in each house may override this veto, which is the same vote required to enact the bill initially. The governor is the head of the state militia, but may only exercise this power if the General Assembly authorizes him to do so when "the public safety requires it" (Section 5).

Judicial branch

Article VI creates the judiciary, composed of the State's Supreme Court, Chancery courts, and others to be "ordained and established" as deemed necessary, and justices of the peace (Section 1).

The Tennessee Supreme Court is to meet in Nashville, Knoxville, and Jackson and not have more than two of its five members from any one of the state's Grand Divisions (East Tennessee, Middle Tennessee, and West Tennessee) (Section 2). The courts were to be elected by the people for eight years at a time (Sections 3 and 4), however this has been changed to the Tennessee Plan.

The court then appoints the state "Attorney General and Reporter" for an eight-year term (Section 5).

The General Assembly may remove judges and state attorneys with a two thirds supermajority of the constitutionally authorized membership in both houses, with each vote for and against being recorded along with the statesman's reason for his decision. Removal will lie for either official or personal misconduct. The judge or attorney subject to removal must be notified 10 days before such a vote (Section 6).

Alternatively, judges and state attorneys may be impeached, by a simple majority vote of a quorum of the General Assembly, for crimes or misconduct committed solely in their official capacity. In this case, the lower house appoints three members to prosecute the impeached and the senate, presided over by the Chief Justice of the Tennessee Supreme Court, convenes to try the impeached. Conviction requires only a two thirds supermajority of the number of senators "sworn to try the impeachment," a number which may be less than a "constitutional" supermajority (Article V).

Judges are also barred from hearing cases of impeachment. Criminal charges after removal from office would result only from a separate trial of fact in the state's ordinary courts.

Other provisions

The constitution has several provisions that are unusual for a state constitution. It mandates only three "constitutional officers" other than governor, namely secretary of state, state treasurer, and comptroller, and provides for them to be elected by the General Assembly, not the voters as is far more common. (Tennessee is the only state other than Hawaii and, arguably, New Jersey in which the governor is the sole office holder elected statewide. The Lieutenant Governor of New Jersey is elected as part of a ticket alongside the governor.) The governor's designated successor is the Speaker of the Tennessee State Senate, elected from among its membership, a provision now found in the constitutions of only a few other states; the majority now have a full-time lieutenant governor. (This office is referred to as Lieutenant Governor of Tennessee in subsequent statutory law, but not in the constitution.) General elections for state offices were moved to make them simultaneous with federal elections (Novembers of even-numbered years) with elections for county and judicial offices to be held in the Augusts of even-numbered years; this later became the traditional date for primary elections for the statewide offices to be held as well, so that the day on which, for example, a sheriff was elected would be the same day as the primary election for governor would be held.

Other provisions included are the procedure for the establishment of new counties and the recognition of three counties previously established by the legislature in contravention of provisions of the previous constitution. New counties would carry a pro-rata share of the indebtedness of the county or counties from which they were being formed, preventing the formation of new counties as a way of areas getting out from under debt that they had previously incurred. (This provision nonetheless incited a spate of new counties; ten were established in the next decade, although none have been since, and one of those established was subsequently abolished, and the provisions are such that would make the establishment of any further counties beyond those extremely difficult and unlikely.) Obviously, some current agendas of the era were reflected, as there were provisions allowing county seats to be moved in two counties with only a majority vote of the populace while a two-thirds majority was required in all others. A county line adjustment between two counties was made between two existing counties, and special provisions made for counties whose formation was already planned at the time, as well as for settling definitively the status of others which had already been created without strict adherence to the provisions for the creation of new counties which was contained in the previous constitution.

There were also provisions forbidding interracial marriages and integrated schools, allowing for a poll tax, preventing interest over 10% from being charged on loans and making this usury per se. All of these last four provisions have been either subsequently formally removed or invalidated by Supreme Court of the United States decisions and are no longer enforced; whether the prohibition of former duelists from holding office is valid has apparently not been tested.

The militia

The state's militia is governed by Article VIII, which specifies that all officers be elected by those subject to service within their groupings and as the Legislature directs (Section 1) but that the governor appoint his staff officers and they in turn appoint their staff officers (Section 2). The Legislature is also directed to exempt religious conscientious objectors (Section 3).

Disqualifications

Article IX lists three groups of people who are barred from various privileges:

It should be noted that the restrictions on ministers and atheists have been deemed to be unenforceable due to the interpretations of the Supreme Court of the United States with regard to the First and Fourteenth Amendments to the United States Constitution.

Amendment process

Per Article XI, Section 3 of the Tennessee State Constitution, there are two methods to amend the document:

Legislative method

Under the legislative method (which is a quite lengthy process), the Tennessee General Assembly must pass a resolution calling for an amendment and stating its wording, and must do so in three separate readings on three separate days, with an absolute majority on all readings. The resolution does not require the governor's approval.

The amendment must then be published at least six months before the next legislative election, but is not placed on the ballot at that time. Instead, once the legislative election is held, the proposed amendment must go another three readings, three day voting process. At this stage the amendment now requires approval of 2/3 of the legislature on each vote.

Finally, the amendment is placed on the ballot as a referendum coinciding with the next gubernatorial election. For the amendment to pass, the number of "yes" votes must be greater than "no" votes, and the "yes" votes must equal "a majority of all the citizens of the state voting for governor." [4]

Convention method

Under the convention method, the legislature can put on any ballot the question of whether to call a constitutional convention. The question must state whether the convention is limited (i.e., to make amendments to the existing constitution) or unlimited (i.e., to propose an entirely new constitution). If the convention is limited, the question must state which provisions of the current constitution are to be subject to amendment, and the subsequent convention, if approved, is limited to considering only amendments to the provisions specified in the call.

The proposed amendments (or new constitution) must then be placed on the ballot and receive a simple majority.

A constitutional convention can not be held more frequently than once every six years.

Amendments

The record length of time for going unamended ended in 1953. In 1952 the legislature called for a convention and the voters approved it. They then approved the recommended amendments. The most noticeable change wrought in the 1953 amendments was a lengthening of the governor's term from two to four years, with the added provision that no governor could succeed himself. (Until subsequently amended again, in 1978, the effect of this provision was to establish what critics derisively called "leapfrog government".) Another provision allowed for the consolidation of a county government with the government of a county's principal city in the four largest counties.

The 1953 convention established precedents which proved useful in the future. Since no one who served in the 1870 convention writing the current constitution was still alive by this point, many things had to be decided, such as what rules the convention would function under temporarily until it was organized and adopted its own permanent rules, how a chair was to be elected, and other administrative matters. Another administrative provision determined that the Tennessee State Constitution was to be compiled in a manner similar to statutory law and not in the manner of the federal constitution. This means that amendments actually replace the language that they alter in the document and that in future publications the amendments are integrated into the text rather than appended to it as "Amendment I", "Amendment II", etc. The effect of this is that one reading the text of the constitution will, absent a strong historical background, sometimes be confused as to which provisions are those of the original document and which are the result of later amendment, although some amendments declare themselves to be such within the text of their provisions. This practice does prevent a reader of the current constitution from being confused by encountering obsolete provisions which have since been changed and not reading on to the end of the document to establish that fact, which is sometimes done to the federal constitution by persons who wish to obscure its current provisions, such as those who assert that the document "even now refers to blacks as only three-fifths of a person", a provision which has not applied since the American Civil War but is still in the text of the early part of the document, the amendment deleting this provision not being encountered until much later.

Further amendments were proposed and subsequently adopted at conventions held in 1959 and 1965. Among the most notable of these allowed for the establishment of home rule by counties which chose to adopt a charter allowing them to function in many ways similar to municipalities. They also allowed legislators to receive a salary over and above expense money, and extended the terms of state senators from two years to four, done in such a way so that half of its membership is elected every two years. Another important change was that the frequency of scheduled sessions of the legislature (and hence the budget cycle) was altered from biennial to annual, though the General Assembly is still limited to a total of fifteen organizational days and ninety legislative days every two years; sessions extending beyond this (and special sessions extending beyond twenty legislative days) result in the legislature being unable to continue to receive its expense per diem. The poll tax provisions, already rendered moot by the Twenty-fourth Amendment to the United States Constitution, were removed. The 1971 convention, dominated by longtime Tennessee politician Clifford Allen, was limited to the establishment of a new system of property tax assessments.

1977 convention and its aftermath

The 1977 convention was the broadest call since the original writing of the constitution in 1870. It was called in part to remove long-unenforceable provisions such as those banning interracial marriage and school desegregation, but primarily at the behest of banking interests to remove the 10% cap on interest, which was becoming very problematic in the economic environment of the time. (It had long been circumvented by smaller lenders such as finance companies with tactics such as administration fees, service charges, and payment fees, with tacit legislative approval.)

This convention proved to be very long and contentious, in fact lasting nearly twice as long as the original one that wrote the 1870 constitution. There were major fights over the adoption of the permanent rules and over who would be the permanent chair. Although this seemed to bode ill, in fact once the convention got on track it accomplished what many legal scholars see as being a record of largely solid achievement.

A major change was the proposal that the governor be allowed to succeed himself once. A two-term governor was also not barred from any future service in that office in the way that a two-term U.S. President is by the Twenty-second Amendment to the United States Constitution, but rather from a third consecutive term.

Any county and its principal city could vote to consolidate themselves into one "metropolitan government", not just the four largest ones. (In fact, the only two counties to have availed themselves of this provision since it has been added were two of the smallest ones in the state.) Minor changes included the elimination of the necessity of each county having the archaic (at least for urban counties) offices of constable and cattle ranger. (The provision for rangers was routinely widely ignored; that mandating constables had not been.) The provision limiting sheriffs to three consecutive two-year terms was replaced with one allowing sheriffs an unlimited number of consecutive four-year terms (a provision called by some wags the "Fate Thomas Amendment", as it seemed to have been passed largely at the behest at the then hugely popular sheriff and political boss of Davidson County, who was otherwise about to be term-limited out of office and who eventually served federal time for corruption-related offenses).

Some in the media derided the convention as having gone out of control, but the primary public reaction was one of apathy. The primary controversy within the convention once it began its actual work, as opposed to its early organizational difficulties, was over a judicial amendment which would have, among other provisions, made the state attorney general an office elected by statewide popular vote rather than retaining selection by the Supreme Court, and eliminated the requirement that the Supreme Court meet in Knoxville and Jackson (where a new and elaborate building for it had just been completed). Another important provision of the proposed amendment was to repeal the 1870 Constitution’s requirement that all judges “shall be elected” in favor of a provision stating that “Justices of the Supreme Court and judges of the Court of Appeals shall be appointed by the Governor from three nominees recommended . . . by the Appellate Court Nominating Commission” and that “[t]he name of each justice and judge seeking retention shall be submitted to the qualified voters for retention or rejection . . . at the expiration of each six year term.”

The voters, in a special election held March 7, 1978, solely to ratify the amendments proposed by this, voted to remove the archaic provisions and the usury cap, and to accept the changes regarding the governor's terms and metropolitan government, but narrowly turned down the judicial amendment, marking the first time that an amendment put to the voters by a convention had been defeated. Of the 13 proposed amendments, only one was rejected by the voters.

No further conventions have been held since 1977, although they have been frequently proposed, in part due to the recent spate of state fiscal crises. Some have proposed them to determine conclusively whether or not the Tennessee Constitution allows a general, broad-based income tax on wages. It has been suggested by several observers that one reason against the General Assembly requesting future conventions is that they do not desire to create potential new rivals for themselves; as the members themselves cannot be delegates to the convention, in calling for a convention they are creating a potential new set of politicians campaigning in their same districts and addressing some of the same issues. This occurred to an extent after the 1977 convention, which launched the career, among others, of Memphis attorney Steve Cohen, who was vice president of the convention and later became a prominent progressive Democrat in the Tennessee State Senate, until 2006, when he was elected U.S. Representative from the Ninth District.

Recent amendments

Beginning in the 1990s, amendments were placed on the ballot without a convention being held, utilizing for the first time the provisions allowing for the General Assembly to propose amendments directly.

In 1998, the voters were asked about two amendments. One was the "Victims' Rights Amendment", which required prosecutors to stay in touch with crime victims and their families, explain to them how purported offenses involving them were to be prosecuted, and notify them when persons who had committed crimes against them were being scheduled for parole or release, among other provisions. The other amendment removed the word "comfortable" from the requirements for minimum standards for prisons. Both of these amendments passed by overwhelming margins in an election that was marked by a very light turnout. These amendments represented the first changes to the constitution in 20 years.

In 2002, the legislature again proposed two amendments. The first proposal passed, repealing a constitutional ban on all lotteries. The ban had been a carryover from the 1835 document and was widely regarded as not only a tribute to religious fundamentalism but also to the influence of Andrew Jackson, a known lottery opponent who was in no way averse to other forms of gambling, especially that regarding horse racing. The amendment established the current state lottery. The other amendment on the 2002 ballot, pushed for by the Tennessee Municipal League (TML), would have eliminated a constitutional provision that set $50 (a large sum in 1870 when the provision was enacted) as the maximum allowable fine for violation of a municipal ordinance. Instead, it would have allowed the legislature to set limits on the fines that municipalities could enact. However, after putting much effort into getting the legislature to put this amendment onto the ballot, the TML put little effort into winning voter approval, and the proposal was largely overlooked during the public debate over the high-profile lottery amendment. Many voters were unaware of the proposal until confronted with it on the ballot and hence, may have turned it down for that reason. It became the first amendment put forward by the General Assembly to be defeated at the polls and joined the proposed 1978 judicial amendment as only the second ever defeated.

In 2006, two additional amendments to the Tennessee State Constitution were passed. The Tennessee Marriage Protection Amendment specifies that only marriages between a man and a woman can be legally recognized in the state of Tennessee. The amendment was approved by 81% of Tennesseans participating in the vote, which was 30.91% of eligible voters that year. A second amendment, authorizing the legislature to enact legislation allowing counties and municipalities to exempt people over 65 from property tax increases, was approved by 83% of voters.

In 2007 the Tennessee House of Representatives unanimously passed a resolution calling for an amendment to establish the right to hunt, fish, and harvest game "subject to reasonable rules and regulations," but the State Senate did not act on the measure during the 2007 legislative session.[5] The Tennessee Wildlife Resources Agency (TWRA) had raised objections to an earlier version of the measure, which had the backing of the National Rifle Association. TWRA was concerned that the proposal would prevent it from continuing its regulation of hunting and fishing methods, as well as efforts to manage fish and game populations.[6][7]

In 2010, voters approved the following "The citizens of this state shall have the personal right to hunt and fish, subject to reasonable regulations and restrictions prescribed by law. The recognition of this right does not abrogate any private or public property rights, nor does it limit the state's power to regulate commercial activity. Traditional manners and means may be used to take non-threatened species." by a 90%–10% vote.

In 2014, voters approved an amendment saying "Nothing in this Constitution secures or protects a right to abortion or requires the funding of an abortion. The people retain the right through their elected state representatives and state senators to enact, amend, or repeal statues regarding abortion, including, but not limited to, circumstances of pregnancy resulting from rape or incest or when necessary to save the life of the mother.".[8] This overturns a 2000 Tennessee Supreme Court ruling, Planned Parenthood v. Sundquist. As well, a ban on income tax being levied against earned income (as opposed to interest and dividends, still subject to income tax), a change in the judiciary selection/retention process (making the Tennessee Plan explicitly constitutional), and allowing veterans organizations to host gambling fundraisers all passed.

References

  1. 1 2 Tennessee Supreme Court, Tennessee Encyclopedia of History and Culture
  2. ↑ Tennessee Constitution of 1796, Tennessee's Landmark Documents, Tennessee Virtual Archive.
  3. 1 2 3 The Tennessee Constitution of 1834; Historical Note, Tennessee State Library and Archives website, accessed May 30, 2011
  4. ↑ Tennessee Constitution of 1870, Tennessee Secretary of State website, accessed November 4, 2014
  5. ↑ Bill information for HJR0108, 105th General Assembly, Tennessee General Assembly website, accessed January 7, 2008.
  6. ↑ Lawmakers want amendment shielding hunting rights, by Matt Gouras; Associated Press story published in The Tennessean May 21, 2005
  7. ↑ Bill would make hunting, fishing a protected right in Tennessee by Stan Voit, The Mountain Press, May 23, 2005.
  8. ↑ http://www.timesfreepress.com/news/2014/nov/04/all-four-tennessees-constitutional-amendments-pass/

External links

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