The Four Proposed Amendments to the Tennessee Constitution

THE FOUR PROPOSED AMENDMENTS TO THE TENNESSEE CONSTITUTION

On November 8, 2022, Tennesseans will decide whether to adopt four amendments to the state constitution. Each of these amendments has succeeded in the initial stages of the amendment process by receiving a favorable vote in two successive sessions of the General Assembly.1 In the next and final step in the amendment process, Tennessee voters will decide whether to “approve and ratify such … amendments by a majority of all the citizens of the state voting for governor.”2 To clear that hurdle, two conditions must be satisfied: (1) each proposed amendment must receive more “yes” votes than “no” votes; and (2) the number of “yes” votes must exceed one-half of the total votes cast in the gubernatorial race.3 The proposed amendments include a provision related to the rights of workers, employers, and unions; a detailed process for the appointment of an acting governor; a more absolute abolition of slavery; and the removal of a provision purporting to disqualify religious leaders from serving in the General Assembly. As explored in the sections that follow, these proposed amendments implicate a variety of competing policy concerns for voters to consider when they decide whether to adopt these changes to our state’s highest source of law.

Amendment 1: Rights of Workers, Employers, & Unions

Amendment 1 proposes the addition of a new section in article XI of the Tennessee Constitution, to provide as follows: “It is unlawful for any person, corporation, association, or this state or its political subdivisions to deny or attempt to deny employment to any person by reason of the person’s membership in, affiliation with, resignation from, or refusal to join or affiliate with any labor union or employee organization.”4 Notably, Tennessee already has a statute, originally adopted in 1947, with nearly identical language.5 Thus, rather than effectuating a change in the law, Amendment 1 would enshrine existing rights and protections in the state constitution.

Proponents of Amendment 1, such as Governor Bill Lee and former Governor Bill Haslam, contend that so-called “right-to-work” laws protect workers from being “fired based on their choice to join, or not join, a union and pay dues.”6 They also contend that such laws lead to positive economic outcomes, such as higher incomes, increased employment rates, and population growth.7

Opponents of Amendment 1, including many unions and their supporters, characterize it as constitutionalizing the “right to work (for less).”8 Those opposing the measure point out that schemes such as Amendment 1 disincentivize union membership by requiring union contracts to extend to all workers, not just those in unions.9 They also draw upon arguments made by workers’ rights activists who opposed the adoption of “right-to-work” laws in the mid-twentieth century. A prominent example comes from the workers’ rights advocacy of Dr. Martin Luther King Jr., who addressed the subject in an often-quoted 1961 speech: In our glorious fight for civil rights, we must guard against being fooled by false slogans, such as “right to work.” It is a law to rob us of our civil rights and job rights. Its purpose is to destroy labor unions and the freedom of collective bargaining by which unions have improved wages and working conditions of everyone.10

Given Tennessee’s existing statutory protections, one question is why there is a need for a constitutional amendment. Proponents of Amendment 1 point to recent state and national legislative efforts to undermine right-to-work laws and augment protections for unions.11 To date, lawmakers have not been able to enact such measures at the state or national level. Of course, the enactment of any such federal law would result in the preemption of any inconsistent provision of state law, including provisions of the state constitution.12

Amendment 2: Appointment of Acting Governor

Amendment 2, if adopted, would delineate the process for the appointment of an acting governor.13 In its current form, article III, section 12 of the Tennessee Constitution succinctly addresses the line of succession if the governor dies or is removed from office; the Speaker of the Senate is the first in line to take on the governor’s duties, followed by the Speaker of the House. Amendment 2 would retain the same line of succession, but it would add a detailed process for the temporary exercise of gubernatorial powers by the Speaker of the Senate (or, in his or her absence, the Speaker of the House) upon certification by the governor that he or she is temporarily unable to discharge the duties of the office. The governor would be entitled to resume office upon certification that he or she has regained the ability to discharge the powers and duties of the office. An example of a scenario in which this provision might apply is if a medical condition renders the governor temporarily unable to serve.14

Amendment 2 would also provide for the Speaker of the Senate (or, in his or her absence, the Speaker of the House) to assume the role of acting governor upon the submission of a declaration that the governor is unable to discharge the duties of the office by a majority of the commissioners of administrative departments of the state executive branch. As with the previous provision, the governor would be entitled to resume office upon his or her certification of regaining the ability to

COVER STORY By: William Gill

Lincoln Memorial University Duncan School of Law

discharge the powers and duties of the office.

Amendment 2 also addresses details such as the salary to be paid to a speaker who is serving as acting governor (they retain their speaker’s salary) and their legislative role (during service as acting governor, a speaker may retain legislative office but may not preside as speaker or vote as a legislator).

Perhaps because of its bureaucratic nature, Amendment 2 has not generated as much controversy as the other amendments.

Amendment 3: An Unequivocal Ban on Slavery

In its current form, article I, section 33 of the Tennessee Constitution provides “[t]hat slavery and involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted, are forever prohibited in this state.” Amendment 3 would modify that provision to read as follows: “Slavery and involuntary servitude are forever prohibited. Nothing in this section shall prohibit an inmate from working when the inmate has been duly convicted of a crime.”15

Tennessee is one of five states considering the adoption of this type of amendment; the others are Alabama, Louisiana, Oregon, and Vermont. Three other states (Colorado, Nebraska, and Utah) approved similar amendments in recent years.

The purpose of the amendment is to remove language from the state constitution allowing a person convicted of a crime to be subjected to slavery or involuntary servitude as a form of punishment. Proponents of Amendment 3 point to the history of exploitation arising from the exception allowing slavery as form of criminal punishment, including the Black Codes, Jim Crow laws, and chain gangs.16 Representative Joe Towns (D-Memphis), one of the sponsors of the original joint resolution initiating the amendment process, commented as follows: “Today is an historic day as this state has taken a definitive step forward in stripping all forms of slavery from the Tennessee State Constitution. Some Tennesseans may be prisoners, but, by God, they will not be slaves.”17

Amendment 3 has garnered bipartisan support and passed with significant majorities each time legislators voted on it. During its final vote in the most recent legislative session, only six legislators voted against it, expressing the view that slavery is already unlawful in Tennessee and the new measure could confuse voters by suggesting otherwise.18

Amendment 4: Removal of Prohibition on Religious Leaders as Legislators

Article IX, section 1 of the Tennessee Constitution provides as follows: “Whereas ministers of the Gospel are by their profession, dedicated to God and the care of souls, and ought not to be diverted from the great duties of their functions; therefore, no minister of the Gospel, or priest of any denomination whatever, shall be eligible to a seat in either House of the Legislature.” Amendment 4 would delete that provision in its entirety.19

Article IX, section 1 has not been enforced since 1978, when the U.S. Supreme Court held in McDaniel v. Paty that the provision violated the First Amendment to the U.S. Constitution—specifically, the right to the free exercise of religion.20 Since that time, it has become routine for members of the clergy to serve in the General Assembly.

Even though it is well established that article IX, section 1 is invalid, the lawmakers who sponsored Amendment 3 have expressed that it is an important signal of “biblical values.”21 They have also explained that it is beneficial to “clean up” an obsolete provision, especially given that Tennessee is the last state to maintain such a prohibition.22

Notably, immediately following the prohibition on ministers is another disqualification that provides as follows: “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.”23 That provision is also unenforceable because it violates the First Amendment of the U.S. Constitution.24 The decision to remove the prohibition on ministers while leaving intact the equally unconstitutional prohibition on non-believers underscores the stigma that members of the latter group continue to face.25

Conclusion

Although predicting elections is always a dangerous endeavor, experience suggests that proposed amendmenats often pass absent strong opposition. Should these Amendments be adopted in November, they will represent a significant milestone in the continued evolution of the Tennessee Constitution.

1 See Tenn. Const. art. XI, § 3. 2 Id. 3 See George v. Hargett, 879 F.3d 711, 730 (6th Cir. 2018) (upholding Tennessee’s methodology for proposed constitutional amendments). 4 Right to Work Amendment, 111th Tenn. Gen. Assemb., SJR 648 (June 17, 2020); 112th Gen. Assemb., SJR 2 (Apr. 29, 2021). 5 Tenn. Code Ann. § 50-1-201. 6 Vote Yes on 1, https://tnright2work.com/ (last visited Sept. 9, 2022) (quote from embedded video). 7 Id. 8 See Betty Bean, Another Amendment One: The Right to Work (for Less), Knox Scene (Sept. 8, 2022), available at https://www.knoxtntoday.com/another-amendmentone-the-right-to-work-for-less/. 9 See id. 10 Dr. Martin Luther King Jr., 1961 Speech on Workers’ Rights, quoted in Now is the Time, Dr. Martin Luther King Jr. on Labor in the South: The Case for a Coalition (Jan. 1986). 11 See, e.g., Protecting the Right to Organize Act of 2021, 117th Cong., H.R. 842 (Mar. 9, 2021). 12 See U.S. Const. art. VI, cl. 2 (Supremacy Clause); Lake v. Memphis Landsmen, LLC, 405 S.W.3d 47, 55 (Tenn. 2013). 13 Resolution on the Exercise of the Powers and Duties of the Governor During Disability, 111th Tenn. Gen. Assemb., SJR 154 (May 2, 2019); 112th Gen. Assemb., SJR 10 (May 4, 2021). 14 Cf. The West Wing, Twenty Five, Episode 23 of Season Four (NBC May 14, 2003). 15 Resolution to Prohibit Slavery and Involuntary Servitude, 111th Tenn. Gen. Assemb., SJR 159 (Apr. 22, 2019); 112th Gen. Assemb., SJR 80 (May 4, 2021). 16 See, e.g., Dawn R. Harrington & Jan Blair, How Voters Can Abolish Slavery Forever in Tennessee this November, The Tennessean (Aug. 3, 2022). 17 Victoria Antram, Tennessee Voters Will Decide 2022 Amendment to Remove Language that Allows the Use of Slavery and Involuntary Servitude as Criminal Punishment, Ballotpedia News (May 7, 2021). 18 The legislators who voted against Amendment 3 are Representatives Susan Lynn (R-Mt. Juliet) and Chris Todd (R-Madison Cnty.), as well as Senators Janice Bowling (R-Tullahoma), Joey Hensley (R-Hohenwald), Brian Kelsey (R-Germantown), and Frank Niceley (R-Strawberry Plains). See Tennessee General Assembly, SJR 80 (“Votes” tab), https://wapp.capitol.tn.gov/apps/BillInfo/Default. aspx?BillNumber=SJR0080 (last visited Sept. 9, 2022). 19 Resolution Relative to Disqualifications, 111th Tenn. Gen. Assemb., SJR 178 (June 17, 2020); 112th Gen. Assemb., SJR 55 (Apr. 27, 2022). 20 435 U.S. 618, 629 (1978). 21 Daniel Silliman, Why Tennessee Is Just Now Looking at Lifting a Ban on Clergy in the Legislature, Christianity Today (May 10, 2022) (quoting Sen. Mark Pody (R-Lebanon)). 22 Chris O’Brien, Amendment Would Remove Minister Disqualification from Constitution, https://www.wkrn.com/news/tennessee-politics/amendment-wouldremove-minister-disqualification-from-constitution/ (Aug. 13, 2022) (quoting Rep. Mark Love (D-Nashville)). 23 Tenn. Const. art. IX, § 2. 24 See Torcaso v. Watkins, 367 U.S. 488, 495 (1961) (“[N]either a State nor the Federal Government … can constitutionally pass laws or impose requirements which aid all religions as against non-believers.”). 25 See, e.g., Aleem Maqbool, The Stigma of Being an Atheist in the U.S., BBC News (Aug. 4, 2014).