The opening of the 72nd session of the Tennessee General Assembly in 1941.
Government, in the basic sense of a structure or system for management of a group or geographic region, has a long history in the state. Archaeological studies of habitation sites of prehistoric Native Americans give intriguing hints of political and religious systems we will never know a great deal about. Bands of Ice Age hunters who came to the area ten thousand years ago, as well as those who came later, were probably led by chieftains who exercised authority over their followers. The Old Stone Fort in Coffee County, an impressive earthen structure built by Woodland people and carbon-14 dated as early as A.D. 30, may have taken several hundred years to build. It stands as evidence of the presence of leadership and the authority of a structure of rules or laws that led to the erection of a remarkable ceremonial edifice.
In what would become Tennessee, Native Americans such as the Cherokees, Creeks, and Chickasaws established patriarchal systems of governance centered on chiefs, sub-chiefs, and councils of advisors in principal villages. The Cherokees had a primary town where the most powerful chief lived. They gave a place in their council to an Honored Woman, who decided the fate of captives taken in warfare. Creeks had provinces with capital towns that functioned as ceremonial and administrative units. A chief, or miko, assisted by a group of elders called beloved men, dealt with matters of war and peace, ceremonial obligations, and contacts with non-Creek people. Cherokees, Creeks, Chickasaws, Choctaws, and Shawnees all utilized a clan system of family identification that provided a foundation of relationships interwoven with political and religious elements of life.
The brief stay in 1540 of the Spanish adventurer Hernando de Soto in East Tennessee heralded a new era in Tennessee history. Over a century later, in 1663, the region fell within the borders of the newly chartered English colony of Carolina. English rule was nominal as the French and English struggled for control of the interior of eastern North America and its lucrative fur trade with Native Americans. The year 1763 brought the Treaty of Paris, which formalized the victory of England over France by giving the British control of Canada and most of North America east of the Mississippi River. The British immediately issued a proclamation establishing a line down the crest of the Appalachian mountains and instructing colonists to remain east of the line; the West was designated for Cherokees and other Native Americans. Though Tennessee lay west of the line, outside the official border of settlement, fur trappers and settlers would not be held back from the West by a distant government's scribble on a map.
North Carolina claimed the land that would become Tennessee under the provisions of their colonial charter. In three separate instances settlers, believing they were beyond the effective reach of North Carolina government, took the initiative to establish order on their own terms. In 1772 Watauga and Nolichucky residents assembled and formed the Watauga Association. They created offices to maintain peace and protect themselves from Cherokee attacks. The association did not last long, and records have not survived. Eight years later, pioneers at the French Lick on the Cumberland River drew up the Cumberland Compact for similar purposes. The compact provided for twelve elected judges but, like its predecessor to the east, did not endure. It was superseded in 1783, the year the United States won its independence, when North Carolina asserted its authority and established Davidson County in the region.
Settlers from the Holston and Watauga areas held meetings at Jonesboro in 1784 to organize a new state. North Carolina ceded control of its western lands to Congress in June but repealed its action in November. Supporters of statehood petitioned Congress, claiming that the actions of North Carolina had caused Indian attacks on settlements and the state should not be permitted to reassert its claims over a "country whose prayers she has rejected and whose interests she has forsaken." (1) Their hopes rested with congressional approval of a new, separate state named for Pennsylvania's Benjamin Franklin. John Sevier reluctantly assumed leadership of the State of Franklin movement, serving as governor under a constitution that closely resembled that of North Carolina. The State of Franklin failed, dying slowly over a period of several years, a victim of North Carolina's opposition, internal division, and a Confederation Congress reluctant to become involved.
Statehood came, however, before the end of the century. On December 12, 1789, North Carolina lawmakers passed another statute transferring western land to the new national government under the U.S. Constitution. This time there was no change of mind by Carolina, and the United States accepted the region, naming it the Territory of the United States South of the River Ohio, known as the Southwest Territory. North Carolina stipulated that slavery be permitted in the territory, but in all other respects the provisions of the Northwest Ordinance of 1787 were to apply to the western area it relinquished. The ordinance held forth the promise of eventual statehood for the future Tennessee.
The Northwest Ordinance set forth three stages of governance based on population. The Southwest Territory moved swiftly through the steps, carried forward by a tide of new settlers moving into the territory from the east and northeast. Following a census and referendum in 1795 that showed a majority favored statehood, Territorial Governor William Blount called for the election of delegates to a constitutional convention. Fifty-five delegates, five from each county, were chosen and assembled in Knoxville on January 17, 1796, to begin work. Blount was elected to chair the convention.
In a three-week period, the delegates fashioned a constitution that Thomas Jefferson was later to call "the least imperfect and most republican" (2) of such documents. A bicameral legislature dominated government. The franchise was extended to all free males who were at least twenty-one years of age, owned property, and had lived in the county for six months. The legislature filled most county and state offices. There was no distinct judicial branch of government, as the legislature was empowered to create courts and appoint judges as needed.
The state would have a governor who served a two-year term, and no governor could be elected for more than three consecutive terms. The governor, having little real power, was charged with the execution of the laws but had no veto over legislative actions. At the end of the text the delegates included a Declaration of Rights, derived significantly from the North Carolina constitution of ten years earlier. The constitution of Pennsylvania was another major source for some passages, including the article on the powers of the governor and another addressing impeachment. Finally, the delegates from Tennessee County agreed to surrender their county's name so that it might become the designation of the state.
Following the directives of the convention, Governor Blount proceeded to hold an election for governor and the legislature. Tennesseans intended to have a government in place and ready to function when Congress approved the petition for statehood and the state constitution. John Sevier was elected governor, and the new general assembly convened on March 29, 1796. All steps were taken on the assumption that Congress would act favorably on the request for admission to the Union. Approval came, but not without a struggle. Federalists, who supported John Adams in the upcoming presidential election, opposed admission, fearing the new state would favor Republican Thomas Jefferson in the close fall balloting. Supporters of the state prevailed, and on June 1, 1796, President George Washington signed legislation admitting Tennessee as the sixteenth state.
In the first half of the nineteenth century a number of states, responding to social forces pressing the case for a greater role for the average white citizen, revised their constitutions. Tennessee became part of this trend when, on May 19, 1834, sixty delegates assembled in Nashville in a constitutional convention and selected William Carter of Carter County as president of the proceedings. The principal interests of the delegates concerned the provisions of the 1796 constitution dealing with taxation and representation. The constitutional provision that had required equal taxation of all land except for town lots, which could be taxed at the rate for two hundred acres of land, was rewritten to call for all property to be taxed on its value. This removed the long-standing grievance of small farmers who resented the fact that, under the old constitution, owners of fertile lands with a great many improvements on them paid no more per acre in taxes than the owners of the less developed farms on less fertile soil.
White citizens received greater opportunities for political expression and office-holding. The size of the legislature increased to ninety-nine seats in the lower house, with the Senate set at one-third the number of representatives when the population of the state reached one and a half million. Voters received the right to elect trustees, sheriffs, and all other county officials, who now served for fixed terms. All property requirements for voting were eliminated. However, the new-found concern with the "common man" extended to whites only. In making suffrage changes, the delegates restricted the vote to white men, thereby disfranchising free black males, who had voted under the 1796 Constitution.
A variety of other issues were addressed. Antislavery groups petitioned for the abolition of slavery, but the delegates rejected their appeals. Instead, the convention added language requiring the approval of slave owners for the passage of any future acts of emancipation. On the topic of the permanent location of the state capitol, the legislature was expected to make a final decision by early 1843. Lotteries were prohibited in the new constitution. The procedure for amending the constitution was changed somewhat but remained difficult to alter. When presented to the voters in March 1835, the new constitution was ratified by a vote of 42,666 in favor to 17,691 against.
A little over a quarter of a century later, Tennesseans faced an unprecedented crisis of governmental loyalty. The election of Abraham Lincoln to the presidency in November 1860 raised the long running sectional controversy over slavery to a new level of intensity, causing several states of the Deep South to sever their connection with the United States. A majority of Tennesseans hoped to stay within the Union and on February 9, 1861, rejected a proposal to call a state convention to consider secession. However, Lincoln's call for volunteers to defend Federal authority following the attack on Fort Sumter in April produced a reaction in Middle and West Tennessee from residents who identified with the new Confederate States of America. On June 8 voters ratified secession and affiliation with the Confederacy by a vote of 104,913 to 47,238. Only staunchly Unionist East Tennessee gave a majority for the Union.
In 1862 Union successes on the battlefields in Middle and West Tennessee put Confederate Governor Isham G. Harris to flight and led Lincoln to appoint Greeneville resident and outspoken Unionist Andrew Johnson military governor of the state. The tide of the Civil War ran steadily in favor of the Union as more and more of the state came under Union control. In January 1865 five hundred Unionist delegates assembled in Nashville to amend the constitution and set in motion a return to loyal civil government. The delegates prepared an amendment that abolished slavery and a "schedule" that revoked the state's secession, declared the actions of the Confederate government null and void, and confirmed the appointments made by Johnson as military governor. The delegates set in motion the process for election of a Unionist legislature and William G. Brownlow as governor. The actions of the convention were approved on February 22, 1865, by a vote of Unionists only. Readmission to the Union occurred over a year later on July 23, 1866, when President Andrew Johnson signed a congressional resolution approving the action.
Four years of control of state government by Radical Republican supporters of Governor Brownlow ended in 1869 with the restoration of voting rights to ex-Confederates. In that year, the people approved a proposal to elect delegates to a constitutional convention, which assembled on January 10, 1870, at the courthouse in Nashville. The convention was dominated by Conservatives cognizant of the unspoken presence of federal oversight but determined to wipe out the legacy of the Radical Republican period and prevent future domination of public affairs by a minority. John C. Brown, an ex-Confederate general, was elected chair of the convention. More temperate than some ex-Confederates, Brown led the convention in a moderate direction as it went about the process of altering the constitution.
In conformity with federal requirements, slavery was explicitly forbidden. Suffrage was then the key issue, and the convention's critics expected the delegates to act to disfranchise former slaves. Many ex-Confederates deeply resented the 1867 enfranchisement of the freedmen, when they had been denied the same right. Ultimately, although African American men retained the right to vote, the inclusion of a provision for the levy of a poll tax portended disfranchisement when it became a prerequisite to voting. Although the poll tax was justified by its proponents as a school tax, its inclusion reflected the attitude of many whites against what they perceived as an uneducated black electorate whose votes would not be cast wisely. However, many critics expressed concern that the tax could be used to reduce the number of poor white voters as well as the number of black voters.
Reflecting the resentment felt by ex-Confederates toward the actions of former governor Brownlow and the Radical-controlled legislature, the delegates restricted the powers of the legislature and the governor. The length of paid legislative sessions was restricted; the general assembly could not lend money or credit to any private corporation. The governor's power to use the state militia was curtailed, and the writ of habeas corpus could be suspended only by action of the general assembly. In addition, the chief executive could not appoint county officials. However, one action increased the power of the governor. The governor received veto power over any bill passed by the legislature, but a veto could be overridden by a simple majority vote of the houses of the legislature.
Opposition to Radical control of the supreme court led to an increase in the size of the court to five members, and the requirement that no more than two justices could be residents of the same grand division of the state. The attorney general's term was increased from six to eight years, and the post, which had been filled by popular election in the past, would now be an appointed one, decided by the supreme court.
The difficult process of legislative amendment of the basic law was not changed in the constitution of 1870. The 1834 document contained a procedure whereby the constitution could be changed by legislative action. This process was retained in the 1870 text. A proposed amendment had to be approved by a majority of both houses of the legislature and published six months prior to the beginning of the next session. The next general assembly had to approve the change by a two-thirds vote of each house. Finally, a majority of the voters in the next election for state representatives had to ratify the proposed change.
The delegates approved another process for amending the constitution by means of a convention such as their own. The first constitution of 1796 contained a provision for this method, but the 1834 constitution did not. Under the provisions for amending by convention, lawmakers had to pass a call for a convention, and a majority of voters had to endorse it in a vote on the call. The delegates in convention could propose changes. However, the proposed changes had to be submitted to the people for approval by a majority of those voting. This has been the avenue used in most successful attempts to amend the constitution since the 1870 document was ratified. On March 26, 1870, the work of the convention was approved by a vote of 98,128 to 33,972.
Delegates and voters had no way of knowing that the document they had crafted and approved would remain the basic law of the state for over a century. Three conventions, in 1796, 1834, and 1870, in less than one hundred years, might have led to predictions of more change in the next century, but this has not been the case. Remarkably, the constitution remained unchanged until 1953. In that year, ex-governor Prentice Cooper chaired a convention that proposed changing the governor's term of office from two to four years but forbade the incumbent from serving a second term in succession. The governor received the line item veto, and wording permitting the poll tax, ruled unconstitutional by the United States Supreme Court some years earlier, was dropped.
Under the proposed provisions, the general assembly received an increase in per diem, and the state's cities were given the option of home rule. In regard to the amending processes, the delegates favored dropping the limiting requirement that a specific amendment, which must originate in the legislature, could be offered for consideration no more frequently than once in six years. Such amendments now had to receive a majority vote of those voting for governor, rather than for representatives, to be incorporated into the constitution. In regard to the constitutional convention procedure for amending, the delegates decided to place a six-year limit on the frequency of such conventions. As in the past, all recommended revisions put forward by a convention were subject to approval by the voters.
The 1953 body, the first limited constitutional convention, spawned four successors at the minimum six-year intervals permitted. Delegates assembled in 1959, 1965, 1971, and 1977. In 1959 they proposed extending the terms of county trustees. The 1965 gathering changed the criteria for apportioning seats in the legislature, extended Senate terms to four years, and abolished biennial meetings of the legislature in favor of annual sessions. County courts were permitted to fill legislative vacancies, and for the first time, lawmakers were paid a salary, plus per diem. Six years later, delegates met in a convention restricted to the purpose of addressing property classification for taxation.
The 1977 convention had a broader agenda. On March 7, 1978, voters approved twelve of thirteen changes recommended by the convention of the preceding year. The proposals of greatest interest included those allowing the governor to serve two terms in succession, authorizing the legislature to set maximum interest rates, and requiring a balanced budget. Language establishing the post of county executive and a county legislative body of not more than twenty-five members was endorsed. In addition, the general assembly was granted authority to permit alternate forms of county government. Federal court rulings required changing the voting age to eighteen, striking wording forbidding interracial marriages, and purging a provision that called for segregated schools. Not approved by the voters were proposed changes in the judicial articles of the constitution.
All three of Tennessee's constitutions have met the perceived needs of the state's citizens, but the 1870 fundamental law has had a remarkable life span. Written by a convention heavily influenced by events of the post-Civil War era, it also carries a substantial legacy of the 1796 and 1834 constitutions embedded in its provisions. Its most significant shortcoming is the difficulty of the amending procedure; indeed scholars have termed it "the most difficult of all state constitutions to amend." (3) As a result, at times the Tennessee Constitution has not reflected changes in society and the United States Constitution, including Supreme Court interpretations of the national Constitution. A number of amendments implemented by means of the convention process would probably have been made by legislative initiative, if the legislative process were not so difficult as to prove practically impossible to use to implement change. Nevertheless, the constitution reflects a people's basic efforts, imperfect as they have been in some regards, to construct a society of laws with an enduring framework of democratic, representative government.
Robert E. Corlew, Tennessee: A Short History (2nd ed., 1990); Lee F. Greene, David H. Grubbs, and Victor C. Hobday, Government in Tennessee (4th ed., 1982); Anne H. Hopkins, Neva Lyons, Michael MacDonald, and H. P. Hamlin, Issues in the Tennessee Constitution (1976); Lewis L. Laska, "A Legal and Constitutional History of Tennessee, 1772-1972," Memphis State University Law Review 6 (1976): 563-672 and The Tennessee State Constitution: A Reference Guide (1990).
Published » December 25, 2009 | Last Updated » January 01, 2010