Free at Last to Speak Plainly About Our Legislature
Jul 31, 2024 by David Fowler
I am glad the Republican primary for the state legislature is over. It was hard for me not to weigh in on various contests, but I couldn’t because of state and federal laws governing endorsements. However, now I am free to say what I wanted to say, and the delay is probably good. What I have to say might have been too unnerving for conscientious voters.
I think I know pretty much every Republican member of the legislature who has served more than two terms (four years). I’ve known the Republican Caucus leaders and the two Republican Speakers for more than a decade.
And, based on the following, here is my summation: The best of the Republican Caucus does not have the knowledge of law necessary to do their lawmaking work the way our founding fathers intended for it to be done.
But, here is the good news: Even as, by God’s grace (literally and not euphemistically), I learned over the last nine years what I didn’t know about law and needed to know, the same is possible for the Republicans just elected, if they are willing to learn.
My Recurring Experience with our Republican Legislators
The context for my summation is based on my experience over the last five years speaking ad nauseum to numerous legislators about grounding their most important and controversial legislation in the common law, using it as the justification expressly given to the judges who would later be tasked with reviewing the constitutionality of their legislative actions.
I argued that common law be the express basis upon which all unborn life should be protected from abortion; all persons, not just religious ones, should be protected from COVID jabs; minors should be protected from faux medicine purporting to change their gender; and an exclusively male-female definition of the martial relationship be re-established as opposed to the any-two-persons-will-do definition now being accepted by our governor and county clerks.
Why My Experience Should be Important to You
The importance of what I urged upon our legislators relative to their use of and reliance on common law is simple enough. In 1833, U.S. Supreme Court Justice Joseph Story explained the common law’s foundational importance to our form of government as follows:
The U.S. Supreme Court has acknowledged and reinforced this by saying that the precepts of the common law make for a “nomenclature of which the framers of the Constitution were familiar.” Minor v. Happersett, 88 U.S. 162, 167 (1875).
Because the common law was the nomenclature used for drafting the U.S. Constitution, the U.S. Supreme Court has said, even after adoption of the 14th Amendment::
Smith v. Alabama,124 U.S. 465, 478 (1888).
Finally, the Tennessee Supreme Court has emphasized why common law is important when it comes to how legislation is worded:
Seal v. H&F, Inc. 301 S.W.3d 237, 257 (2010)(Kock, Jr., J., concurring) (emphasis supplied).
In other words, if a legislator doesn’t know what common law is or doesn’t know the law already provided by common law, he or she is not going to know if a statute is drafted in the best way possible or whether it will accord with the requirements of the U.S. Constitution.
This, to me, is a serious deficiency. It’s like a doctor treating you who has never studied biology or gone beyond a high school biology class.
Application of the Foregoing to Tennessee’s Legislature
Once upon a time the presumption expressed above by Tennessee Supreme Court Justice Kock would have been true, but now it is totally unfounded. Not one legislator I know has a knowledge of common law sufficient to inform what they do or how to draft legislation touching on any of the issues I mentioned. Not one.
And here is why I say that: If Republican legislators and particularly their leaders understood common law and its relevance to what they do, they would not have rejected every one of the four efforts I have made in recent years through Representatives Bud Hulsey and Tom Leatherwood and Senator Janice Bowling to employ the use of common law in drafting legislation.
The Republican Caucus leaders particularly wanted no part of using common law regarding abortion, COVID, transgenderism, or marriage. Unfortunately, they rule the roost.
What This Means for You
Until there is a nucleus of legislators who understand the common law or leaders who do and will lead the others, the right and proper foundation of our system for enactment of legislation will be missing in action.
Perhaps some of them will ask me to help them learn what I learned, and I would do it for them. But I’m not holding my breath.
However, until this lack of knowledge is cured, you should not expect to see the direction in which we’re headed change for the better. And here is why.
A train might continue to travel for a while after it has gone off its tracks, but the journey will not end well. The same is true for our legislature. Its work is running off the tracks of common law on which it was designed to work.
If you would like to learn more about the common law foundation upon which our civil government was established and upon which it must operate to work correctly, let me know. I’ll do my best to find a way to get that instruction to you.
I think I know pretty much every Republican member of the legislature who has served more than two terms (four years). I’ve known the Republican Caucus leaders and the two Republican Speakers for more than a decade.
And, based on the following, here is my summation: The best of the Republican Caucus does not have the knowledge of law necessary to do their lawmaking work the way our founding fathers intended for it to be done.
But, here is the good news: Even as, by God’s grace (literally and not euphemistically), I learned over the last nine years what I didn’t know about law and needed to know, the same is possible for the Republicans just elected, if they are willing to learn.
My Recurring Experience with our Republican Legislators
The context for my summation is based on my experience over the last five years speaking ad nauseum to numerous legislators about grounding their most important and controversial legislation in the common law, using it as the justification expressly given to the judges who would later be tasked with reviewing the constitutionality of their legislative actions.
I argued that common law be the express basis upon which all unborn life should be protected from abortion; all persons, not just religious ones, should be protected from COVID jabs; minors should be protected from faux medicine purporting to change their gender; and an exclusively male-female definition of the martial relationship be re-established as opposed to the any-two-persons-will-do definition now being accepted by our governor and county clerks.
Why My Experience Should be Important to You
The importance of what I urged upon our legislators relative to their use of and reliance on common law is simple enough. In 1833, U.S. Supreme Court Justice Joseph Story explained the common law’s foundational importance to our form of government as follows:
The common law is our birthright and inheritance and that our ancestors brought hither with them upon their emigration all of it, which was applicable to their situation. The whole Structure of our present jurisprudence stands upon the original foundations of the common law.
Joseph Story, Commentaries on the Constitution of the United States § 157 (emphasis added) citing “Journal of Congress, Declaration of Rights of the Colonies, Oct. 14, 1774, p. 27 to 31.The U.S. Supreme Court has acknowledged and reinforced this by saying that the precepts of the common law make for a “nomenclature of which the framers of the Constitution were familiar.” Minor v. Happersett, 88 U.S. 162, 167 (1875).
Because the common law was the nomenclature used for drafting the U.S. Constitution, the U.S. Supreme Court has said, even after adoption of the 14th Amendment::
[T]he interpretation of the Constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history.
Smith v. Alabama,124 U.S. 465, 478 (1888).
Finally, the Tennessee Supreme Court has emphasized why common law is important when it comes to how legislation is worded:
The General Assembly is presumed to know . . . the state of the common law when it enacts legislation. Thus, legislative acts are construed with reference to the common law.
Seal v. H&F, Inc. 301 S.W.3d 237, 257 (2010)(Kock, Jr., J., concurring) (emphasis supplied).
In other words, if a legislator doesn’t know what common law is or doesn’t know the law already provided by common law, he or she is not going to know if a statute is drafted in the best way possible or whether it will accord with the requirements of the U.S. Constitution.
This, to me, is a serious deficiency. It’s like a doctor treating you who has never studied biology or gone beyond a high school biology class.
Application of the Foregoing to Tennessee’s Legislature
Once upon a time the presumption expressed above by Tennessee Supreme Court Justice Kock would have been true, but now it is totally unfounded. Not one legislator I know has a knowledge of common law sufficient to inform what they do or how to draft legislation touching on any of the issues I mentioned. Not one.
And here is why I say that: If Republican legislators and particularly their leaders understood common law and its relevance to what they do, they would not have rejected every one of the four efforts I have made in recent years through Representatives Bud Hulsey and Tom Leatherwood and Senator Janice Bowling to employ the use of common law in drafting legislation.
The Republican Caucus leaders particularly wanted no part of using common law regarding abortion, COVID, transgenderism, or marriage. Unfortunately, they rule the roost.
What This Means for You
Until there is a nucleus of legislators who understand the common law or leaders who do and will lead the others, the right and proper foundation of our system for enactment of legislation will be missing in action.
Perhaps some of them will ask me to help them learn what I learned, and I would do it for them. But I’m not holding my breath.
However, until this lack of knowledge is cured, you should not expect to see the direction in which we’re headed change for the better. And here is why.
A train might continue to travel for a while after it has gone off its tracks, but the journey will not end well. The same is true for our legislature. Its work is running off the tracks of common law on which it was designed to work.
If you would like to learn more about the common law foundation upon which our civil government was established and upon which it must operate to work correctly, let me know. I’ll do my best to find a way to get that instruction to you.
