Commentary: The fine art of constitution writing, and the continued lengthening of Tennessee’s Constitution

Tennessee voters this month grew our state’s constitution by 442 words. 

Amendment One, expanding the number of crimes for which the accused can be held without bail, passed by better than a two-to-one margin. It added 152 words and deleted 53.  Amendment Two, banning a statewide property tax, also passed more than two-to-one. It added 36 words and deleted 20.  Amendment Three, a victim’s rights measure, passed by better than a three-to-one margin. It added 517 words and deleted 190.

Let’s put aside, for a moment, the merits of each of these public policy questions and instead ask ourselves what kind of things belong in state constitutions and which are better placed in statutes (laws) or left to judicial discretion (interpretation of laws)?

The U. S. Constitution is a model of brevity. The original draft contained just 4,543 words, including the signatures of the 39 signing delegates. It has 27 amendments, the first ten of which —the Bill of Rights — have been with our republic since the start. Add in those amendments and 17 subsequent ones and our Constitution grows to 7,591 words — still one of the shortest national constitutions in the world. The original handwritten text fit on just four large parchment sheets.

Tennessee voters will decide whether those accused of some felonies lose right to pretrial bail

By contrast, the average state constitution is about 26,000 words, more than three times as long. Alabama’s state constitution is a behemoth at an estimated 388,882 words. The recent additions send Tennessee’s state constitution over 14,000 words, still rather modest compared to many other states — Texas at nearly 87,000, Oklahoma’s topping 81,000, Louisiana and Missouri both clocking in at more than 69,000.

The impulse when crafting a constitution is to put a lot of things in there to be certain you get the kind of society you want. Some of these provisions don’t age well and look silly or worse in retrospect. We still have a provision, one hopes unnecessary, preventing those who fight in or challenge others to duels from holding public office in our state (Article IX, Section 3). In 2022 Tennessee voters quietly removed a provision that allowed slavery or involuntary servitude as a criminal punishment. That same year we also removed an obsolete (and long held unenforceable by federal courts) ban on the clergy serving in the General Assembly.

Several states have “zombie” provisions that remain on the books but are unenforceable, including literacy tests for voting, restricting certain offices only to men and disqualifying atheists from public office.

Amended: All four amendments to Tennessee’s Constitution pass overwhelmingly

Florida’s Constitution (Article X, Section 21) prohibits the cruel and inhumane confinement of pregnant pigs on farms. Now, before anyone squeals that I am for inhumane treatment of pigs, let me reiterate this column is not about the merits of the policy; it’s about what needs to be in a constitution and what works just fine as a statute.

Constitutions set out the basic functions of government (done at what level and by what body) and also protect against government overreach by delineating what rights exist, are held by the people, and cannot be abridged by the government. 

The U.S. Constitution is far from a perfect model, especially when one considers the democracy twisting potential of the Electoral College and some of the interpretation abuses by the current Supreme Court. Nevertheless, it remains a good work in progress and usually a coherent structure.

Elected officials, new members of the military, and naturalized citizens all take an oath to uphold the Constitution. Many groups give out pocket copies of it, and many Members of Congress repeatedly point out how they carry those pocket copies with them. This “less is more” approach works so long as some neutral court is given the task of interpreting constitutional application. The founders, for example, did not and could not envision video recorders, much less streaming services, but they did set out a provision, Article I, Section 8, Clause 8, for Congress “To Promote the Progress of Science and the Useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Past precedent regarding copyrights and patents thus can guide courts in these matters.

In Tennessee, we could and should let judges weigh the merits of when to hold without bail those not yet convicted of anything. We could and should also pass laws about victim rights and the procedures to assure them. We probably do not need to doubly and triply assure our fidelity to no state income tax ever. We have made all of these constitutional matters, however, and just for a moment or two let us ask ourselves, what really requires constitutional amendment and what is pompous pandering.