On March 6th, the Tennessee Attorney General’s office issued an opinion claiming that SB 2775, the Restoring State Sovereignty Through Nullification Act was unconstitutional, predicated primarily on the finding that only the judicial branch of government may interpret the constitutionality of law. With that in mind, the AG further contemplates that since only the judicial branch may interpret the constitution, the separation of powers doctrine found in Article II § 2 would restrict the legislature from practicing that judicial power of interpretation.
The opinion states, “…legislative action that vests the legislature itself with the authority to nullify unconstitutional federal action is not permissible because it arrogates to itself the power to interpret the law that properly belongs to the judiciary…In short, under the Tennessee Constitution, the judicial branch alone has the power to determine the constitutionality of federal action.”
The most unfortunate part of this opinion is the revelation that our Attorney General indeed subscribes to the incredibly flawed notion of judicial supremacy. Not only does this opinion carry the idea of judicial review from Marbury v Madison (1803), but also displays a very broken interpretation of the Supremacy Clause stemming from the Cooper v Aaron (1958) decision declaring that Supreme Court decisions (like treaties and acts of Congress) are the supreme law of the land. Unfortunately, that is not what the Supremacy Clause says at all.
“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”
– Article VI, Clause 2, United States Constitution
Nowhere in the text of the US Constitution is this supreme power given to the Courts. In fact, it must be noted that the Supreme Court itself has acknowledged that in Marbury v Madison (1803), the Court gave itself the power of judicial review.
“There is not anything in the Constitution that says that the court, the Supreme Court, is the last word on what the Constitution means…And yet, what the court did was reason from the structure of the Constitution that that’s what was intended.”
– Justice Sonia Sotomayor, Dobbs v Jackson, Oral Arguments (12/01/2021)
It cannot be overstated that in 2021 during the case to overturn Roe v Wade (1973), the Court acknowledged out loud what so many of us have always known to be true…the Courts act on an illegitimate supreme authority that it has given itself.
By depending on bad case law instead of the original text of the constitution itself, our Attorney General is doing the same thing here. He reasons from Tennessee case law such as Richardson, 913 S. W. 2d 446 (1995) and City of Memphis, 146 S. W. 3d 531 that “the power to determine the constitutionality of a law [is a] ‘function reserved for the judicial branch.’” The problem is that it is found nowhere in the text of Article VI or anywhere else in our state constitution where this power is expressly given to the judicial branch. In fact, you will find quite the opposite.
It is the legislature that is given authority over inferior courts by setting its boundaries and jurisdiction by law. Underneath the Supreme Court, inferior courts (circuit and chancery) exist in our state only because the General Assembly determines that they exist. Beyond the legislature’s power to create the courts, even causes of action, issues surrounding standing, and penalties that can be assessed at trial are all determined under the constitutional powers of the legislative branch.
Further, our constitution requires that all elected officials take an oath to uphold the constitution of this state and of the United States.
“Every person who shall be chosen or appointed to any office of trust or profit under this Constitution, or any law made in pursuance thereof, shall, before entering on the duties thereof, take an oath to support the Constitution of this State, and of the United States, and an oath of office.”
– Article X § 1, Constitution of the State of Tennessee
It is hard to comprehend how a governor or a legislator, a representative of the people, is able to fulfill this oath without having the ability to reason within themselves to interpret a constitution that they have sworn to uphold.
But let us take this idea even further. One of my absolute favorite provisions of the Constitution of the State of Tennessee is Article XI § 16, which states,
“The declaration of rights hereto prefixed is declared to be a part of the Constitution of this State, and shall never be violated on any pretense whatever. And to guard against transgression of the high powers we have delegated, we declare that every thing in the bill of rights contained, is excepted out of the General powers of government, and shall forever remain inviolate.”
In our state constitution, we have secured our rights guaranteed in Article I to the degree that they cannot be administrated away; they cannot be legislated away; they cannot be adjudicated away. They are removed from the reach of any government power, including the judiciary. This constitutional provision echoes and reaffirms the very beginning of our Declaration of Rights, “That all power is inherent in the people.”
I would submit that the power to determine the constitutionality of law or reason the constitution itself is certainly not preserved to the judiciary and is equally ascribed to all branches of government, but is also an expressed power of the people of this state. And in fact, this truth is the very essence of the Restoring State Sovereignty Through Nullification Act.
We are living in a moment where we are indeed at war with factions of our own government. Federal agencies are being weaponized against the people. And unfortunately, courts are at best slow, and at worst, reluctant to provide relief to everyday Americans in defense of our God-given liberties not only secured by the Constitution, but not to be disparaged as per the Ninth Amendment. Short of the conflicts during the time of the Civil War, there has never been a time in American history where it is increasingly incumbent upon the power of the States (respectively) to assert a kind of sovereignty that would reject the unconstitutional actions of a tyrannical federal government that has lost its way.
Not only do state legislatures indeed have the authority to interpret and apply their power derived from the Constitution, but for the sake of our future, they must.
