Amendment 2 backers say Tennesseans are too dumb to vote

Over the next two months we will read and hear much from a variety of well-known, ostensibly smart folks who are going to urge us to “Vote Yes on Amendment 2” in November.

They will raise the evil specter of politics in our judiciary; they will cite the potential for corruption by judges who can be bought; they will bemoan “outsiders” coming to Tennessee with their bags of money to buy a particular brand of justice; and they will, oh so subtly, say that there is not enough information available for voters to make a rational choice, i.e., “You are too dumb to vote.”

They will, as Justin Owen did this week, compare the proposed change to our state constitution with the federal judicial system, established by the Founding Fathers to act as a check on the power of the legislative and executive branches of the U.S. government. We are meant to believe that our federal courts are somehow immune to politics, bad judges or incomprehensible decisions. They are not.

Under Mr. Owen’s argument, “If it was good enough for Jefferson, it is good enough for me,” then perhaps we should repeal the 17th Amendment and return to the Constitution’s original structure of state legislators electing our senators. I know of quite a few state legislators who would gladly embrace that and put their buddy Joe Carr in the U.S. Senate.

All these arguments boil down to a prevailing belief that the common citizen of Tennessee is not competent, and particularly not when it comes to determining who should get the plum $170K-a-year position as an appellate judge. Only a select few, mostly lawyers and their rich clients, know who should slide onto the bench and sit in judgment of Tennesseans.

As James Madison, the diminutive architect of our nation’s Constitution, wrote, “I believe there are more instances of the abridgment of the freedom of the people by gradual and silent encroachments of those in power than by violent and sudden usurpations.”

Perhaps Mr. Owen, and the other advocates of taking away the rights of Tennesseans, should remember Mr. Madison’s admonition, and take heed, too, of Thomas Jefferson’s observation:

“I know no safe depository of the ultimate powers of the society but the people themselves; and if we think them not enlightened enough to exercise their control with a wholesome discretion, the remedy is not to take it from them, but to inform their discretion by education. This is the true corrective of abuses of constitutional power.”

Except in Tennessee.

Tennessee’s constitutional creators bought wholeheartedly into Mr. Jefferson’s belief and in 1870 made that belief the first article of our constitution:

“That all power is inherent in the people, and all free governments are founded on their authority, and instituted for their peace, safety, and happiness; for the advancement of those ends they have at all times, an unalienable and indefeasible right to alter, reform, or abolish the government in such manner as they may think proper.”

While the 1870 Tennessee constitution chose to make only the governor’s office in the executive branch elective — North Carolina elects 10, and Kentucky six, executive branch offices — and gives broad powers to the general assembly, it took a different approach with our justices. Article VI, Section 3, simply states:“The judges of the Supreme Court shall be elected by the qualified voters of the state.”

In 1971, spurred by the accelerating shift toward a Republican majority of voters in the state, the Democratic-controlled legislature engineered the Tennessee Plan, which created a system of appointed appellate judges who would then face uncontested “retention elections.” The change was made even though the people were not presented with a constitutional amendment. (In 1978, Tennesseans rejected an amendment to make the plan constitutional; it is the only constitutional amendment ever rejected by Tennesseans. The governor and legislature ignored the will of the voters.)

Tennesseans are trampled every day by those who think they know what is best for them. The last thing this state needs is for its voters to be tricked into surrendering their independence and their rights to a bunch of folks whose core belief is that you aren’t smart enough to vote.

Reach Frank Daniels III at 615-881-7039 and on Twitter @fdanielsiii.