By Joel D. Joseph, author of Black Mondays: Worst Decisions of the Supreme Court, now in its fifth edition.
Ninety-eight years ago, the nation turned its eyes to Tennessee to watch the Scopes Monkey Trial. Once again, the nation is turning its eyes to Tennessee to witness the Tennessee legislature violate democratic principles by expelling two young black representatives for protesting against the lack of gun control legislation. The protest came a week after the horrendous murder of three nine-year-olds and three adults at the Covenant School in Nashville with an assault rifle.
In 1925, the Scopes Monkey Trial was a notable American legal case, in which a high school teacher, John T. Scopes, was accused of violating Tennessee's Butler Act. This Tennessee law made it illegal for teachers to teach human evolution in any public school. Scopes v. State, 154 Tenn. 105 (1927). Two of the best-known attorneys in the country, Clarence Darrow and William Jennings Bryant, argued the case.
In both instances Tennessee violated the constitutional rights of its constituents. In the Scopes case, students were deprived of learning about evolution. Concerning the recent expulsion of two black legislators, both the U.S. and the Tennessee Constitution have been violated. The two legislators are Representative Justice Jones, D-Nashville, and Representative Justin Pearson, D-Memphis, who each represent about 80,000 constituents. They are the two youngest legislators in Tennessee, 27 and 28 years old.
The Tennessee Constitution, like the Constitution of Russia, looks good on paper, but has not yet been enforced. Article I, Section 1, the very first provision of the Tennessee Constitution provides, "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude." Three Tennessee legislators joined a large group of protestors at the Tennessee Capital. The two who were expelled were black. The one who was not expelled was a white woman, Representative Gloria Johnson, D-Knoxville. Ms. Johnson said that her skin color played a role in her escaping expulsion from that body after her two black colleagues lost their House seats for participating in the same gun violence protest with her. Representatives Jones and Pearson, and their constituents, have a strong case that their rights under Article I, Section 1, have been violated on account of their race.
Section 5 of Article I of the Tennessee Constitution provides, "The elections shall be free and equal, and the right of suffrage, as hereinafter declared, shall never be denied to any person entitled thereto, except upon a conviction by a jury of some infamous crime, previously ascertained and declared by law, and judgment thereon by court of competent jurisdiction." Pearson, Jones and their constituents have been denied the right of suffrage, the right to vote, and the right to have their votes count.
Section 23 of Article I of the Tennessee Constitution provides that "citizens have a right, in a peaceable manner, to assemble together for their common good, to instruct their representatives, and to apply to those invested with the powers of government for redress of grievances, or other proper purposes, by address or remonstrance." The citizens of Tennessee, including representatives Pearson and Jones, were exercising this constitutional rights on March 30th when they protested in favor of gun control.
In addition to violations of Tennessee's constitution, the Tennessee legislature violated the U.S. Constitution. The Fifteenth Amendment to the U.S. Constitution, enacted after the Civil War, prohibits each state, including Tennessee, from denying or abridging a citizen's right to vote on account of race.
The U.S. Justice Department has the right to file suit against Tennessee seeking enforcement of the Fifteenth Amendment and the Civil Rights laws. In the alternative, representatives Jones, Pearson and their constituents have the right to file suit under the Tennessee and U.S. Constitutions.
The U.S. Supreme Court in Powell v. McCormack ruled in 1969 that Congress did not have the unfettered right to expel Congressman Adam Clayton Powell. Justice William O. Douglas said, "the House (of Representatives) is not the sole judge when 'qualifications' are added which are not specified in the Constitution. A man is not seated because he is a Socialist or a Communist. Another is not seated because, in his district, members of a minority are systematically excluded from voting. Another is not seated because he has spoken out in opposition to the war in Vietnam. The possible list is long. Some cases will have the racist overtones of the present one." Justice Douglas was prescient because the Tennessee situation clearly has racial overtones. Attorney General Merrick Garland: We are all watching you and the state of Tennessee. Do the right thing and act aggressively to keep democracy alive in the Volunteer state.
