Today is Friday, July 25, 2014

Sen. Beavers' bill won't stand constitutional test

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According to Dr. Michael McDonald, an adjunct political science professor at Cumberland University and a practicing attorney, the legislation appears to be in conflict with both the state and U.S. constitutions.


"The Constitution of the State of Tennesseeand The United States of America both establish the roles of the Legislative, Executive, and Judicialbranches ofgovernment. Roles whichare designed to maintain the 'Madisonian Model'- checks and balances and the separation of powers. Under both constitutions, no one branch of government is permitted to carryout its duties and responsibilities without these two critical elements," McDonald said.


He said both constitutions provide for the following:the legislative branch (congress and the state legislature or general assembly)to serve as the voice of the people -- to make the laws;the executive branch(president and the governors) -- to execute the laws; andthe judicial branch (the courts, both criminal and civil) -- to interpret all laws.


"This relationship has been tested many times in both the courts, and the court of public opinion. What remains a constant is the belief on the part of those from amyriad of political contours and textures that this balance is critical to the peace, stability, order,of our democracy.So valued is the Madisonian Model that it has withstood over 200 years, promoting the civil exchange of political power in Washington, D.C. and Nashville every four years, regardless of partisan affiliation, along with the lucid understanding that ouradversarial court system must remain above politicalfray, and the partisan flavor of the day, so to speak," McDonald said.


He noted that the proposed legislation would, if adopted, challenge the traditional principles of American Government and Constitutional Law and the power and authority of the judicial branch of government to carry out by letter and spirit, the responsibility of legislative interpretation.


"This legislation, if passed by the State Legislature and enacted into law upon the signing of the governor, will destroy the judicial system in Tennessee as it has been known since 1796.This legislation, upon its face, will strip the judicial system ofall constitutional authority to interpret and say what the law is. The legislature will be empowered toboth make and enforce the laws, an outcome not intended by the founding fathers of our nation and state," McDonald said.


"The irony is that under our existing state constitution, it is the judiciary, the courts, and not the legislature or executive branchthatpossess the final word as to the constitutionality of any laws within the geographical jurisdiction of the Volunteer State. This proposed legislation also has the potential to adversely impact the rights of parties in both civil and criminal cases,and denying to individuals, businesses,andcorporations -- domestic, foreign, and alien-- the priceless freedoms of due process, equal protection, the obligation of contracts, andother liberties under the state and federal Bills of Rights.


"One must also seriously entertain the reality that this proposal,based uponthe existing federal 'Supremacy Clause', will not be enforceable against Congress,the President and Executive Branch, orany other legal entity of the National government," McDonald concluded.


From Post staff reports

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