Final Thoughts on Amendment 1 and the Right to Work
Oct 20, 2022 by David Fowler
Thinking through and watching the debate over Amendment 1 to Tennessee’s Constitution, the so-called “Right to Work” amendment, has been a painful experience for me for two reasons. Today I share why in order that those who want to think about the future being bequeathed to their children and grandchild will see more clearly where we are in our nation. For them, some gut-level sobering truth is needed. Those interested only in the present may want to come back next week.
First, it has been painful to realize how under-educated I have been, particularly about law and government. I write today with the prayer that I can eliminate for some that same pain in the future, perhaps when the consequences of belated realization are graver. Second, it has been painful for me to realize that the legal system bequeathed to us by our Founders is gone.
For those who want the bottom line, here it is. I hope you want to understand Point No. 2
For those who read to the end and want to know what they can do to help change the course we are on, send an email to info@factn.org. I will give you a specific suggestion. I will remind you at the end.
When our nation was founded, we had a common law legal system. It was the product of centuries, and its development cost countless lives. If you want proof that it is gone, Amendment 1 is Exhibit A, as I will later explain.
A common law legal system is a priceless gift. A common law legal system posits that law is developed over centuries in the context of social (historical) development that is orchestrated by the providence of God as He brings about a greater understanding among His people of what is just in light of what is eternally right and true.
A common law legal system holds that law is not based on man’s reason or experience. It is grounded in God. Reason and experience are auxiliary guides to the development of common law, and Scripture stands as a plumb line for both. Simply put, to hate common law is to go to war with God.
A common law legal system holds that people have certain rights granted by God that exist independent of any human being—judge or legislator—and prior to any form of civil government. Those rights limit not just government, but the acts of other persons.
For example, murder is a depravation of right inherent in the fact that life comes from God and no decree by a judge or criminal law enacted act by a legislative body makes it wrong or adds to the wrong it is. Civil authorities cannot take a life absent due process of law (a justice issue joined to a just process) nor can one’s neighbor.
At its founding, the United States was unique among nations. It had a constitution derived from the common law. The French Constitution was not derived from common law but the ex cogitative genius (supposed genius, that is) of those who then happened to have power.
As with the U.S. Constitution, so is the Tennessee Constitution, at least until a few years ago. Its Declaration of Rights in Article I declares only that which is already true, not things made up out of thin air in the back room of a constitutional convention.
For example, look until the day you die, and you will not find in either the United States Constitution or the Tennessee Constitution a declaration that anyone has a right to life or to private property.[i] Would anyone deny such rights because they are not spelled out in the Constitution? Of course not.
Similarly, no Constitution grants anyone a right to work. We are commissioned by God to work and in that work, we find part of the dignity that comes from being made in the image of the God who worked in creation.
Therefore, no law—state or federal—can be just that deprives a person of a right to work.
That this amendment is thought to be needed proves to me is that something is already unjust in our law.
Moreover, to me, this amendment is a sign that we have moved from a common law legal system to a strictly positive law legal system.
In other words, a system that says if there is not a law setting forth a right, then the right does not exist. And, if it is not in the Constitution and is just in a legislative statute, it can be taken away by civil government.
When that can be said of a right, it is not a right in the first place. It is an admission that rights come from government. That is a positive law legal system, and it is totalitarian in nature.
We don’t need a constitutional amendment on this subject as much as we need legislators and citizens who know what fundamental rights are and where they come from.
Moreover, we need legislators who know that creating or even perpetuating a situation that undermines fundamental rights is to insult God from whom those rights come. And we need those who know that kind of situation does injury to whose whom they represent. We need those who understand that for these injuries they will give to God a final accounting (Article IX, Sec. 2. “No person who denies the being of God or a future state of rewards and punishments shall hold any office in the civil department of this state”).
The response I expect to the previous statement is, “Well, what about the Bill of Rights? We put those rights in the Constitution so they could not be taken away.”
That is what I would have said at one time, and this pains me. It shows how grossly under-educated I was and how my political efforts even undermined an appreciation for and reliance on our common law legal system.
For example, we didn’t need a marriage amendment to the state constitution to “protect marriage.” If a human law is needed to prevent marriage from being defined contrary to how God designed it, there is already a problem. By pursuing an amendment, I was conceding to those trying to redefine marriage that the marital relationship between a man and a woman comes from and is made lawful by human law!
Tennessee just needed to declare to the United States Supreme Court that our statutes affirmed the common law understanding of marriage and gone about our business. Our statutes didn’t create marriage, period, so no wrong was done to a same-sex couple by our statutes!
My belated realization about marriage explains why I am writing so bluntly about what lies underneath the need for this amendment. I don’t want my friends and those who trust me to find some day that they have no rights and realize too late that changing back to a common law legal system will cost them their lives or those of their children and grandchildren when some discomfort now could begin to bring a course correction.
The purpose of the Bill of Rights was to limit the jurisdiction of the federal government. It was not granting any rights to citizens of the United States. Consider the preamble to the Bill of Rights as adopted by Congress and sent to the states:
The Bill of Rights was saying the powers given the federal government could not be construed in a way that would deny or disparage the rights it enumerated and the Tenth Amendment made it clear that jurisdiction over common law and common law rights was left to the “states respectively, or the people” under the Tenth Amendment.
In other words, the federal government is a strictly positive law government, and all matters of common law were left to the common law jurisdictions of the states.
Tennessee is supposed to be a common law jurisdiction. So, when something the common law would have recognized—a right to work—must be protected by the state’s constitution that says something is not right about the state of common law in Tennessee. It says there is a fundamental injustice below the surface of this proposed amendment.
Covering over that injustice by the paper on which our constitution is written will not solve that injustice and perpetuates the idea we no longer have a common law legal system.
Vote for the amendment if you want, but please do not ignore the more important and harder work that needs to be done to restore our legal system.
If you want a suggestion for what you can do to help restore a legal system with real fundamental rights not granted by civil government, send an email to info@factn.org
David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006.
First, it has been painful to realize how under-educated I have been, particularly about law and government. I write today with the prayer that I can eliminate for some that same pain in the future, perhaps when the consequences of belated realization are graver. Second, it has been painful for me to realize that the legal system bequeathed to us by our Founders is gone.
For those who want the bottom line, here it is. I hope you want to understand Point No. 2
- Voting for or against this amendment is no grave moral sin.
- Thinking one needs to vote for it may be evidence that our legal system (and nation) is in serious trouble.
For those who read to the end and want to know what they can do to help change the course we are on, send an email to info@factn.org. I will give you a specific suggestion. I will remind you at the end.
The Legal System We Were Given
When our nation was founded, we had a common law legal system. It was the product of centuries, and its development cost countless lives. If you want proof that it is gone, Amendment 1 is Exhibit A, as I will later explain.
A common law legal system is a priceless gift. A common law legal system posits that law is developed over centuries in the context of social (historical) development that is orchestrated by the providence of God as He brings about a greater understanding among His people of what is just in light of what is eternally right and true.
A common law legal system holds that law is not based on man’s reason or experience. It is grounded in God. Reason and experience are auxiliary guides to the development of common law, and Scripture stands as a plumb line for both. Simply put, to hate common law is to go to war with God.
A common law legal system holds that people have certain rights granted by God that exist independent of any human being—judge or legislator—and prior to any form of civil government. Those rights limit not just government, but the acts of other persons.
For example, murder is a depravation of right inherent in the fact that life comes from God and no decree by a judge or criminal law enacted act by a legislative body makes it wrong or adds to the wrong it is. Civil authorities cannot take a life absent due process of law (a justice issue joined to a just process) nor can one’s neighbor.
Application to Constitutions
At its founding, the United States was unique among nations. It had a constitution derived from the common law. The French Constitution was not derived from common law but the ex cogitative genius (supposed genius, that is) of those who then happened to have power.
As with the U.S. Constitution, so is the Tennessee Constitution, at least until a few years ago. Its Declaration of Rights in Article I declares only that which is already true, not things made up out of thin air in the back room of a constitutional convention.
For example, look until the day you die, and you will not find in either the United States Constitution or the Tennessee Constitution a declaration that anyone has a right to life or to private property.[i] Would anyone deny such rights because they are not spelled out in the Constitution? Of course not.
Application to Amendment 1
Similarly, no Constitution grants anyone a right to work. We are commissioned by God to work and in that work, we find part of the dignity that comes from being made in the image of the God who worked in creation.
Therefore, no law—state or federal—can be just that deprives a person of a right to work.
That this amendment is thought to be needed proves to me is that something is already unjust in our law.
Moreover, to me, this amendment is a sign that we have moved from a common law legal system to a strictly positive law legal system.
In other words, a system that says if there is not a law setting forth a right, then the right does not exist. And, if it is not in the Constitution and is just in a legislative statute, it can be taken away by civil government.
When that can be said of a right, it is not a right in the first place. It is an admission that rights come from government. That is a positive law legal system, and it is totalitarian in nature.
We don’t need a constitutional amendment on this subject as much as we need legislators and citizens who know what fundamental rights are and where they come from.
Moreover, we need legislators who know that creating or even perpetuating a situation that undermines fundamental rights is to insult God from whom those rights come. And we need those who know that kind of situation does injury to whose whom they represent. We need those who understand that for these injuries they will give to God a final accounting (Article IX, Sec. 2. “No person who denies the being of God or a future state of rewards and punishments shall hold any office in the civil department of this state”).
“What About the Bill of Rights,” Fowler?
The response I expect to the previous statement is, “Well, what about the Bill of Rights? We put those rights in the Constitution so they could not be taken away.”
That is what I would have said at one time, and this pains me. It shows how grossly under-educated I was and how my political efforts even undermined an appreciation for and reliance on our common law legal system.
For example, we didn’t need a marriage amendment to the state constitution to “protect marriage.” If a human law is needed to prevent marriage from being defined contrary to how God designed it, there is already a problem. By pursuing an amendment, I was conceding to those trying to redefine marriage that the marital relationship between a man and a woman comes from and is made lawful by human law!
Tennessee just needed to declare to the United States Supreme Court that our statutes affirmed the common law understanding of marriage and gone about our business. Our statutes didn’t create marriage, period, so no wrong was done to a same-sex couple by our statutes!
My belated realization about marriage explains why I am writing so bluntly about what lies underneath the need for this amendment. I don’t want my friends and those who trust me to find some day that they have no rights and realize too late that changing back to a common law legal system will cost them their lives or those of their children and grandchildren when some discomfort now could begin to bring a course correction.
The True Purpose of the Bill of Rights
The purpose of the Bill of Rights was to limit the jurisdiction of the federal government. It was not granting any rights to citizens of the United States. Consider the preamble to the Bill of Rights as adopted by Congress and sent to the states:
THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution. (emphasis added)
The Bill of Rights was saying the powers given the federal government could not be construed in a way that would deny or disparage the rights it enumerated and the Tenth Amendment made it clear that jurisdiction over common law and common law rights was left to the “states respectively, or the people” under the Tenth Amendment.
In other words, the federal government is a strictly positive law government, and all matters of common law were left to the common law jurisdictions of the states.
Concluding Thoughts
Tennessee is supposed to be a common law jurisdiction. So, when something the common law would have recognized—a right to work—must be protected by the state’s constitution that says something is not right about the state of common law in Tennessee. It says there is a fundamental injustice below the surface of this proposed amendment.
Covering over that injustice by the paper on which our constitution is written will not solve that injustice and perpetuates the idea we no longer have a common law legal system.
Vote for the amendment if you want, but please do not ignore the more important and harder work that needs to be done to restore our legal system.
If you want a suggestion for what you can do to help restore a legal system with real fundamental rights not granted by civil government, send an email to info@factn.org
David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006.
