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

Different versions

The original constitution of Tennessee came into effect on June 1, 1796 concurrent with the state's admission to the Union. It was replaced by another constitution adopted in 1835. A 3rd constitution was adopted in 1870 and is the one still in use today.

Unlike the latter 2, the original was never submitted to the voters but rather approved by Congress in conjunction with the resolution admitting Tennessee as a state.

Original

The first constitution was widely criticized as giving the executive, a presumably full-time governor, not enough authority and investing too much authority in the legislature, a part-time body. This was cited as a primary reason for its replacement.

Second

The second document took several steps backward in terms of rights and freedoms, including disenfranchising blacks.

Third (Current)

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.

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 original 1796 convention.

Declaration of Rights

Article I, is Tennessee's bill of rights. It copies verbatim 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:

  • Establishment of a state religion is banned and personal freedom of religion is inviolate (Section 3)
  • Test Oaths except to the State or Federal Constitutions as qualifications for office or jury are illegal (Sections 4 and 6)
  • Universal suffrage is granted (Section 5)
  • Unreasonable searches and seizures may not be carried out (Section 7)
  • Bill of attainder may not be issued (Section 8)
  • Fair trial rights are granted, and compelled self-incrimination is outlawed (Section 9)
  • Double jeopardy and cruel and unusual punishment may not be practiced (Sections 10, 13, 16 and 32)
  • Ex post facto laws are dangerous to free government and banned (Section 11)
  • Habeas corpus must be respected unless the General Assembly declares otherwise during wartime (Section 15)
  • Freedom of the press is guaranteed (Section 19)
  • Monopolies are illegal (Section 22)
  • Freedom of Assembly is granted (Section 23)
  • In all cases the military is subordinated to the civil authority (Section 24)
  • Military law may only be levied against people in active militia or army service (Section 25)
  • Explicitly grants the right to bear arms unless the General Assembly legislates otherwise (Section 26)
  • Soldiers may not be quartered in private houses during peacetime (Section 27)
  • Citizens cannot be forced to perform in the militia (See Article VIII) so long as "he" will pay a suitable fine (Section 28)
  • Orders of nobility, or hereditary titles and rights are forbidden (Section 30)
  • For some strange reason, the state's boundaries are listed here, in excruciating detail (Section 31)
  • The State must provide for prisons and their upkeep (Section 32)
  • Slavery is outlawed except as punishment for crime (Sections 33 and 34)
  • Crime victims may expect certain rights from the State (Section 35 and subsections)

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:

Distribution 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 Department
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 Wesberry v. Sanders) (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 only 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 only 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 "trustee of a literary institution". (Section 10)

Either house may imprison people who disrupt it (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).

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 Department
Article III defines the governor to serve a two-year term. The governor 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 when the General Assembly authorizes it because "the public safety requires it" (Section 5).

Judicial Department

Articel VI creates the judiciary, composed of the State's Supreme Court, Chancery coorts, and others to be "ordained and established" as deemed necissary, and justice of the peaces (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 (Secion 3 and 4), however this has been changed to the Modified Missouri Plan or 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 in both houses, with each vote for and against being recorded along with the statesman's reason for his decision. The impeached must be notified 10 days beforehand though (Section 6).

Judges are also barred from hearing cases in which they are interested or involved in, or are related to the parties. Should they be, the governor will appoint others to take his place for that particular case. This once required the entire supreme coort to be replaced in a case challenging the method in which the court was chosen. The Legislature may also regulate special judges when the normal one can't preside or didn't show for (Section 11).

Indictments must be made "against the peace and dignity of the State." (Section 12).

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 New Jersey in which the governor is the sole officeholder elected statewide.) 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.

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 six 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 XI lists three groups of people who are barred from various privileges:

  • Ministers of any religion many not sit as legislators because they "ought not be diverted from the great duties of their functions." (Section 1)
  • Atheists may not perform any office in the government (Although Section 4 of Article I, banning any religious test for any "office of public trust" seemingly would make this hard to enforce) (Section 2)
  • Anyone having anything to do with a duel may not hold any "honor or profit" under the state's government and is liable to be punished otherwise (Section 3)

It should be noted that the restrictions on minsters and atheists have been deemed to be unenforcable 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

The amendment process in the Tennessee State Constitution is next to impossible (Article XI (Miscellaneous Provisions), Section 3). There are two methods:

Legislative method

In one, the Tennessee General Assembly passes a resolution calling for an amendment and stating its wording. This must pass in three separate readings on three separate days, with an absolute majority on all readings. It does not require the governor's approval. It must then be published at least six months before the next legislative election in newspapers of wide and general circulation (this is done for precedent and is not required by law). After the election, the proposed amendment must go through the same procedure (absolute majority on three separate readings). Then it is put on the ballot as a referendum in the next gubernatorial election. To be ratified it must again achieve a absolute majority of those voting in governatorial election.

Convention method

In the alternative, the legislature can put on any ballot the question of whether to call a constitutional convention. It must be stated whether the convention is limited or unlimited (Whether it can only amend the current constitution or totally abolish it and write a new one). If limited, the call 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 must then be submitted to the electorate and approved of by a majority of those voting in the election. A constitutional convention can not be held more frequently than once every six years.

Amendments

This record for going unamended was changed 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, 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 its 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 political figure 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 provision 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 which 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 of Davidson County, who was otherwise about to be term-limited out of office and who eventually was to serve federal time for corruption). Some in the media derided the convention as having gone out of control, but the primary public reaction was one of apathy. The primary contention of 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). The voters, in a special election held solely to ratify the amendments proposed by this convention in February of 1978 (which attracted an extremely low turnout), 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.

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 once and for all whether the Tennessee Constitution allows a general, broad-based income tax or not. (Past Tennessee Supreme Court decision have held that it does not, but all are by now at least several decades old and none of the current members of the court were involved in making them; there is considerable opinion that the current members could and likely would overturn these precedents were the question to be submitted to them.) 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 has been a prominent progressive Democrat in the Tennessee State Senate almost ever since.

Recent amendments

In the 1990s, amendments were put on the gubernatorial ballot without a convention being held, the provisions allowing for the General Assembly to propose them directly being utilized for the first time. 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; it was commonly represented that "activist" judges could see this as mandating cable television or even catered meals as being necessitated by a late 20th century definition of "comfort". Both of these amendments passed by overwhelming margins in an election that was again marked by a very light turnout and represented the first changes to the constitution in 20 years. In 2002, the legislature again proposed two amendments. The first, repealing a constitutional ban on all lotteries that 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, established the current state lottery. The other, pushed for by the Tennessee Municipal League, would have allowed municipalities to enact such fines as were allowed by the legislature instead of being limited to $50, which was still a quite-considerable sum in 1870. However, the League put little of the effort into winning voter approval that it had put into getting the legislature to put this amendment onto the ballot, and it also tended to get lost in the glare of the high-profile lottery amendment. Most voters had never heard of its existence until confronted with it on the ballot and hence, almost reflexively, 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.

Future

The "Defense of Marriage Amendment" passed the Tennessee House of Representatives on a 88-7 vote on March 17, 2005. It had already passed the State Senate by more than the required two-thirds majority and the state had therefore planned it be submitted to the voters at the time of the 2006 gubernatorial election; given the generally conservative nature of the Tennessee electorate, its passage seemed almost inevitable. However, on April 21, 2005, a lawsuit was filed by the American Civil Liberties Union, other human rights groups, and other plaintiffs, including three Tennessee state legislators, claiming that the amendment had not been published in a timely manner between legislative sessions as the constitution required; specifically, that its newspaper publication had occurred only four months prior to the legislative elections in November 2004 rather than the required six. This suit was dismissed at the appelate court level in March 2006 on the grounds that the legislature's intent to put the amendment before the voters in November 2006 was widely reported in the media, meeting this requirement in spirit if not in letter; it seems likely that this decision will in turn be appealed to the Tennessee Supreme Court.

Another constitutional amendment effort currently ongoing involves an attempt to add hunting as another basic constitutional right in response to efforts by animal rights activists to disrupt and/or ban it; this move is opposed even by many advocates of hunting as well as the Tennessee Wildlife Resources Agency, which notes that basic constitutional rights cannot be licensed (no American needs a license to practice freedom of speech, freedom of assembly, or freedom of religion, for example, while licensure is required for activities such as driving a car or piloting an airplane) and that any proposed amendment to the effect of naming hunting as a constitutional right threatens to destroy the entire basis for regulating it, potentially destroying the sport by ending such practices as bag limits, closed seasons, and other measures generally considered to be necessary for successful wildlife management. Now that these objections have arisen, the passage of any such amendment seems far less likely.

External links

1870 in law | Government of Tennessee | State constitutions of the United States | Tennessee court systems | Tennessee law

 

This article is licensed under the GNU Free Documentation License. It uses material from the "Tennessee State Constitution".

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