A bill introduced by Senator Mae Beavers, SB2348, would strip the Tennessee Courts of judicial review and make the legislature the arbiter of all that is constitutional. When a law student sent me an email with the statutory language, I had to ask if this was a joke. But no, I was informed, a state senator from Mt. Juliet has taken it upon herself to decide that the legislature is the body to be trusted with all of our civil liberties and that the Supreme Court will have no authority to review any law it passes. Don't believe me?
Here is the proposed law: "The supreme court shall have no jurisdiction to determine the constitutionality of a statute which has been properly enacted by the general assembly and become law." As introduced, the bill provides that the supreme court, circuit, criminal and chancery courts have no jurisdiction to determine the constitutionality of a statute properly enacted by the general assembly. - Amends TCA Title 4, Chapter 5 and Title 16.
In theory, if this bill were to be passed, then only the legislature can decide what is constitutional. And, if a citizen felt aggrieved by a law then the solution would be an appeal to where, the legislature? Under this arrangement no citizen of Tennessee could seek redress from the Courts and the Supreme Court of Tennessee would have no authority to strike down an unconstitutional law. Of course this is ridiculous, but it is an actual bill that some senators want passed.
Back to the email. If a law student who sent me that email had proposed such a scheme in a law school exam, the student would flunk for failing to recognize that this principal has been settled law in the United states since 1803 when the Supreme Court decided Marbury v. Madison, which if you have forgotten your elementary school education, set out that judicial review is the law of the land.
Since at least 1836 judicial review has been recognized law in Tennessee: "It is clear that the General Assembly cannot rightfully exercise a judicial power." That was written in the Tennessee Supreme Court opinion of Jones' Heirs v. Perry (1836). Further in 1938 the Supreme Court in State v. Shumate wrote that the power resides in the Court to declare an act of the Legislature unconstitutional. The principal is simple. The basis of power for the Court to declare an act of the Legislature invalid is "the provence and duty of the judicial department to say what the law is." Where the Constitution and the statue conflict, the Court must determine which law controls.
That an elected state senator proposes such an idea demonstrates that she either does not understand basic constitutional principals or that she really believes that the Tennessee legislature should be the Supreme Court. Fortunately for us the Legislature is not the TN Supreme Court and hopefully it never will be.
(Lee Davis is a Chattanooga attorney who can be reached at firstname.lastname@example.org or at 266-0605.)