Constitutionally dubious expulsion of Tennessee legislators
U.S. Supreme Court previously nixed Georgia's effort to exclude Julian Bond from office because opposed to the Vietnam War
Guns are politically inflammatory.
In Tennessee, clamor for strict gun regulation escalated when an armed assailant barreled into the Covenant School, a small private academy in Nashville, and killed three 9-year-old students and three adults.
A crowd of gun control proponents gathered at the statehouse demanding legislation. Tennessee House representatives Justin Jones and Justin Pearson, both black, joined the crowd with bullhorns. Representative Gloria Johnson, white, followed suit except for the bullhorn.
The Tennessee House voted to expel Jones and Pearson ostensibly for flouting the chamber’s rules governing decorum. Ms. Johnson narrowly survived her expulsion vote. The bullhorn was said to have made the difference.
Have we seen this rodeo before?
In Bond v. Floyd (1966), the Georgia state legislature excluded black elected representative Julian Bond from taking office for voicing opposition to the Vietnam War. It was preposterously said that opposing the war was inconsistent with an oath to support and defend the Constitution of the United States.
Let’s pause to listen to Republican President Theodore Roosevelt after he left office: “To announce that there must be no criticism of the President, or that we are to stand by the President, right or wrong, is not only unpatriotic and servile, but is morally treasonable to the American public.”
The Supreme Court added in Terminiello v. Chicago (1949), “a function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.”
Georgia was notoriously racist in 1966. Its elected, white supremacist Governor, Lester Mattox, had threated blacks who dared to enter his restaurant with a .38 and ax handles. Do you think Bond’s exclusion was more race than viewpoint-motivated?
Back to the expulsions of Jones and Pearson. The Tennessee legislature and Governor are fiercely opposed to limits on gun ownership, possession, or use. Do you think the Tennessee House would have expelled the two if they had brandished bullhorns to oppose gun restrictions? Or would the House Republicans have squinted at their faux pas? Your answer suggests the two legislators were expelled for championing gun legislation—a constitutionally illicit motivation under the First Amendment according to Bond.
Was racism also at work? Their white colleague, Gloria Johnson, was not expelled. She did not use a bullhorn. But was that distinction a pretext? The KKK was born in Pulaski, Tennessee. Tennessee’s U.S. Senator Al Gore Sr., a liberal, voted against the 1964 Civil Rights Act. Racism is not history.
Moreover, the Tennessee state House had resorted to expulsion on but three prior occasions: in 1866 for contempt of the authority of the House; in 1980 for accepting a bribe while in office; and, in 2016 for a MeToo sexual predator problem.
The circumstantial evidence of racism is suspicious but not conclusive.
Under Tennessee law, Pearson and Jones are likely to be chosen to fill their own vacancies by local officials in Nashville and Memphis. Will they be permitted to resume their seats by the Republican majority?
Their cases are not yet closed.