Tennessee’s localist law faces challenges


In my home state of Tennessee, a constitutional controversy is brewing.

The mystery goes like this: Trump-backed candidate Morgan Ortagus is running to represent Tennessee’s 5th congressional district in the US House of Representatives. Ortagus, a former Bush envoy to the UN and Miss Florida Citrus, moved to Tennessee just a year ago. Objections to the Floridian’s candidacy were so vocal that the Tennessee General Assembly passed legislation last Thursday that enacted new residency requirements for candidates running in the congressional primary. Convention law would require a congressional candidate to have resided in the state of Tennessee and in the district he intends to represent for at least three years prior to his election, promoting not only state loyalty but local loyalty as well.

Hours later, three Ortagus supporters filed a lawsuit in Nashville federal court, calling the law — which awaits signature, veto or tacit acceptance by Gov. Bill Lee — unconstitutional.

“Plaintiffs allege that the bill, which is not yet law, would ‘manifestly’ violate the Constitution, which provides for less stringent qualifications for eligibility for the US House of Representatives. The legislation would likely disqualify their ‘preferred’ candidate, Morgan Ortagus, from running in the Republican primary Tennessee.

That Wall Street Journal has already raised its flag, calling the law unconstitutional in an editorial last week. That diary cites the same reasons as the Nashville lawsuit, arguing that the requirements of the congregation are stricter than those in Article I, Section 2 of the US Constitution. I’m no expert on constitutional interpretation, but as the bill could soon become law, it’s worth taking a closer look.

We can imagine a plethora of contextual reasons why America’s founders did not enshrine residency in the constitution as a requirement for elected officials, such as the fact that they feared the prospect of a weak national government more than a gargantuan one. Or we can check federalist No. 52, and Madison’s brief explanation of the requirements that distinguish the lower from the upper chamber: Congressional elections should be open to all merit, without regard to age, wealth, or religion. All right, good. What about carpetbaggers?

Regarding local allegiances, Madison says that the frequency of electing representatives would preserve the candidate’s common interest with the people, their “dependence and sympathy” on and for those who elected them. I don’t want to bore you with how this turned out; you already live it Regardless, Madison seems was keen to uphold local loyalties, confirming the views of other founders. That said, we still have the problem of out-of-state opportunists trying their luck in counties where they can’t even name the three freeways that run through them, let alone a national electorate that is chronically ill-informed. What now?

There is another argument against the assembly bill that has garnered almost as much attention – that the Tennessee General Assembly engages in political protectionism. You know, insiders in smoky back rooms keeping the fresh, dissenting voices out. That’s bullshit, if you’ll excuse my tone.

First, political parties have established their own rules for candidate qualification for decades. These rules are not state law, but they are certainly more stringent than the Section 2 requirement that a candidate must have resided in the United States for seven years and be at least 25 years old. They are certainly working to keep out candidates who would otherwise have been qualified. If anything is protectionist, it is these rules aimed at enforcing allegiance to a national two-party system, something the Constitution was meant to help us avoid. By contrast, Tennessee General Assembly law would require a meticulous level of state and district loyalty, a commitment to the region’s success that one man would represent.

Tennessee law sets a significantly lower threshold than it could have been. By the same standard, I could run to represent the state of Michigan in the US House of Representatives, and after four years there I can say with confidence that it doesn’t take half that long to govern a place well. In a nation as large as ours, with states and interests so diverse, setting a threshold that favors the natives should not be contentious. (While we’re on the subject, we should get representatives to spend more days a year in their districts than in Washington, so they can feel the impact of the laws they pass.)

When the goal is fair representation, a residency permit protects against unfair abuse by candidates who have achieved national recognition but know little about the district in which they are running. How many absurdly ignorant laws could we avoid if we required a candidate to live as many five years in a state before taking office – or, God forbid, being born there – we may never know . Not to mention the absurdly ignorant candidates who, after giving locals enough time to judge their character, would never make it past the petition process to go to the polls.

Behind this is the question of loyalty, which must be earned through closeness. Keep in mind that most candidates choose to live in the districts they represent, although this is not currently a requirement. It’s an accepted tradition that you should belong to the community you wish to serve, one that we probably haven’t codified because it’s one that candidates generally heeded or felt the burn of being at the ballot box were not observed.

Much has changed since 1787, and as much as I like Florida, Florida’s problems are not Tennessee’s. Loyalty to either political party offers no consolation that a candidate understands the concerns of Tennesseans and represents them faithfully on the national stage.

My home state is many things, but you could never call it disloyal. And if letting the 5th congressional district representative know who Nathan Bedford Forrest is constitutes “political protectionism,” then give me a named chair in the club’s cigar lounge.

The Post Tennessee’s Localist Law Faces Challenges first appeared on The American Conservative.

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