Matt Walsh’s ‘Vanderbilt Bombshell’—What will the Governor or the Legislature Do?
Sep 23, 2022 by David Fowler
According to the Daily Wire, “Tennessee Republican Governor Bill Lee has called for an investigation of the Pediatric Transgender Clinic at Vanderbilt University Medical Center (VUMC) after shocking videos posted by Matt Walsh detailed a doctor’s promotion of ‘big money maker’ transgender surgeries.” The legislature declined to address this last year, but if it wants to do so this year, the legislation must be developed to withstand two huge constitutional hurdles.
Four states (Alabama, Arkansas, Texas, and Arizona) have recently enacted restrictions that would prohibit surgeries on pubescent and postpubescent minors. Three of the four have been held unconstitutional by federal district courts. The ACLU has promised a lawsuit over the fourth, Arizona’s. The Department of Justice is indicating it might sue over the Arizona law, and it has already gotten involved in the lawsuit over Alabama’s law.
Medicine and medical testimony will not be the determinative issue. The law will be. The best medical evidence in the world will not stand a chance if the Constitution prohibits the law. With my apologies to Dr. Anthony Fauci, the Constitution, not medical science, is the supreme law of the land.
The key to the constitutionality of a Tennessee law on this subject will rest on its legislative findings. Legislative findings are the statements made in a piece of legislation explaining the legislature’s reasoning and justifications for what the bill does—in this case prohibit procedures that deceive a child into thinking his or her gender has been changed.
In a very real way, findings are the way the legislature tells the Court how its actions should be interpreted. No legislative findings regarding the legal or constitutional grounds were made in the three laws already held unconstitutional. Tennessee should not do as the others have done.
The importance of legislative findings was stressed by a law professor friend of mine in a law review article he is finishing up and that I was privileged to review:
The point is this: By not making any findings as to the law that informs how the bill should be interpreted, legislative bodies let a federal court decide for itself what the interpretive framework should be. Not making findings is analogous to letting a fox judge whether the chicken coop needs a security system.
There are two of them. Both hurdles rest on United States Supreme Court precedents that can render any bill on this subject constitutionally impotent. If the legislature does not force a federal court to consider a particular framework of constitutional interpretation, then it should not be surprised that the judge chooses one that renders the bill unconstitutional.
The first hurdle is how constitutional liberty under the Fourteenth Amendment was defined in Obergefell v. Hodges in 2015. The Court’s holding was premised on the following understanding of liberty under the Fourteenth Amendment: “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.” In June, a majority of the justices affirmed that Obergefell’s holding was still valid.
Thus, the legislature is not serious about the bill if it ignores how constitutional liberty was defined in that decision. Transgender ideology, which many physicians as well as the courts have embraced, rests on the autonomy of the individual to define and express his or her identity.
The findings must explain why “transgender liberty” is not within the scope of the “specific rights” and the “lawful realm” to which Obergefell extends. If the bill does not do that, then expect a judge to find the state went too far.
The legislature cannot leave it up to a federal court to decide, without instruction from the legislature itself, where the line to transgender liberty should be drawn.
The United States Supreme Court has held on numerous occasions that a state must respect a certain jurisdictional authority parents have in relation to the care and nurture of their children. Whatever hospital may sue over the law, expect the ACLU to represent parents who are supportive of their child’s desire to “transition” in their new “identity.”
In other words, if the first constitutional hurdle—a liberty to self-identity—doesn’t trip up the law in court, the second one will unless the governor and legislature know what they are doing.
How will legislators argue they support parental rights—say the right not to have their child exposed to transgender ideology in a public school—but not support the rights of parents who have a different view on the subject and want it to be lived out in their home?
Please do give me the constitutionally vacuous argument that we don’t allow parents to beat their children or give them heroin. Why is this analogy constitutionally vacuous? There is no constitutional right that protects a child (or anyone for that matter) from being beaten or given drugs by any private person. That is why we have criminal laws.
But there is a constitutional “liberty to define and express [one’s] identity.” On what basis is that constitutional liberty to be limited when being protected by a parent?
Yes, but this is not the place for me to broadcast it. No point in giving the bill’s opponents time to muster a counter argument.
If legislators and the governor want to know the answer, I’ve been working on it with some legal scholars for several years in anticipation of this. The law review article I mentioned above will be especially helpful.
Our officials know where to find me. I would be happy to help.
David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006.
Other States Laws Are Being Held Unconstitutional
Four states (Alabama, Arkansas, Texas, and Arizona) have recently enacted restrictions that would prohibit surgeries on pubescent and postpubescent minors. Three of the four have been held unconstitutional by federal district courts. The ACLU has promised a lawsuit over the fourth, Arizona’s. The Department of Justice is indicating it might sue over the Arizona law, and it has already gotten involved in the lawsuit over Alabama’s law.
Medicine and medical testimony will not be the determinative issue. The law will be. The best medical evidence in the world will not stand a chance if the Constitution prohibits the law. With my apologies to Dr. Anthony Fauci, the Constitution, not medical science, is the supreme law of the land.
The Key to Giving a Tennessee Law a Constitutional Chance
The key to the constitutionality of a Tennessee law on this subject will rest on its legislative findings. Legislative findings are the statements made in a piece of legislation explaining the legislature’s reasoning and justifications for what the bill does—in this case prohibit procedures that deceive a child into thinking his or her gender has been changed.
In a very real way, findings are the way the legislature tells the Court how its actions should be interpreted. No legislative findings regarding the legal or constitutional grounds were made in the three laws already held unconstitutional. Tennessee should not do as the others have done.
The importance of legislative findings was stressed by a law professor friend of mine in a law review article he is finishing up and that I was privileged to review:
Enacted preambles [findings] have long been deemed authoritative in resolving ambiguity in the operative part of a statute. Enacted and state-ratified constitutional “preambles” are likewise authoritative. As the Supreme Court noted in District of Columbia v. Heller, where an “operative clause” has an attendant “prefatory clause” that “announces a purpose,” the judiciary must interpret the operative clause to be “consistent with the announced purpose.”
The point is this: By not making any findings as to the law that informs how the bill should be interpreted, legislative bodies let a federal court decide for itself what the interpretive framework should be. Not making findings is analogous to letting a fox judge whether the chicken coop needs a security system.
Constitutional Hurdles the Findings Must Address
There are two of them. Both hurdles rest on United States Supreme Court precedents that can render any bill on this subject constitutionally impotent. If the legislature does not force a federal court to consider a particular framework of constitutional interpretation, then it should not be surprised that the judge chooses one that renders the bill unconstitutional.
A Constitutional “liberty” to self-identification.
The first hurdle is how constitutional liberty under the Fourteenth Amendment was defined in Obergefell v. Hodges in 2015. The Court’s holding was premised on the following understanding of liberty under the Fourteenth Amendment: “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.” In June, a majority of the justices affirmed that Obergefell’s holding was still valid.
Thus, the legislature is not serious about the bill if it ignores how constitutional liberty was defined in that decision. Transgender ideology, which many physicians as well as the courts have embraced, rests on the autonomy of the individual to define and express his or her identity.
The findings must explain why “transgender liberty” is not within the scope of the “specific rights” and the “lawful realm” to which Obergefell extends. If the bill does not do that, then expect a judge to find the state went too far.
The legislature cannot leave it up to a federal court to decide, without instruction from the legislature itself, where the line to transgender liberty should be drawn.
Parental Rights
The United States Supreme Court has held on numerous occasions that a state must respect a certain jurisdictional authority parents have in relation to the care and nurture of their children. Whatever hospital may sue over the law, expect the ACLU to represent parents who are supportive of their child’s desire to “transition” in their new “identity.”
In other words, if the first constitutional hurdle—a liberty to self-identity—doesn’t trip up the law in court, the second one will unless the governor and legislature know what they are doing.
How will legislators argue they support parental rights—say the right not to have their child exposed to transgender ideology in a public school—but not support the rights of parents who have a different view on the subject and want it to be lived out in their home?
Please do give me the constitutionally vacuous argument that we don’t allow parents to beat their children or give them heroin. Why is this analogy constitutionally vacuous? There is no constitutional right that protects a child (or anyone for that matter) from being beaten or given drugs by any private person. That is why we have criminal laws.
But there is a constitutional “liberty to define and express [one’s] identity.” On what basis is that constitutional liberty to be limited when being protected by a parent?
Is There a Solution to Put in the Findings?
Yes, but this is not the place for me to broadcast it. No point in giving the bill’s opponents time to muster a counter argument.
If legislators and the governor want to know the answer, I’ve been working on it with some legal scholars for several years in anticipation of this. The law review article I mentioned above will be especially helpful.
Our officials know where to find me. I would be happy to help.
David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006.
