an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Tennessee, never far behind when it comes to passing legislation that is far behind, is about to follow North Carolina in enacting a “bathroom bill,” which would require transgender students to use bathrooms assigned to their original gender. As Rich Schragger points out, this type of legislation, among its many defects, overrides the ability of municipalities to reach their own resolutions for a given issue. The Tennessee version displays another vice that conservative legislatures seem to be indulging in with increasing frequency – the enactment of expressive or symbolic legislation.
In addition to the bathroom bill, the Tennessee legislature has recently enacted, or is currently considering, bills that declare the .50 caliber Barrett the state rifle of Tennessee, declare the Christian Bible the state book of Tennessee, grant pastors the right to refuse to conduct same sex marriages for religious reasons, and deny funds to the University of Tennessee’s diversity office – which total one quarter of one percent of the higher education budget—because that office issued fairly standard memos about holiday celebrations and gender neutral pronouns.
Expressive legislation is hardly a new phenomenon, of course. The landscape is dotted with government buildings bearing the names of obscure individuals whom some legislator wanted to honor, and the calendar is filled with weeks, or months, named after causes championed by various constituencies. Most of this is fairly harmless. Enacted as a courtesy to the sponsor, it occupies relatively little legislative time and elicits relatively little opposition. But the recent spate of expressive legislation advanced by conservative legislatures, in Tennessee and elsewhere, is distinctly different. Because it engages current political controversies, it winds up being intensely debated in committee and on the chamber floors. The Tennessee legislature, which is limited to meeting only 90 days every two years on substantive matters, seems to have had time for little else besides its array of symbolic bills. In addition, this legislation is designed to antagonize or insult specific sectors of the population –in Tennessee’s case, gun control advocates, non-Christians, transgender citizens, and gay or lesbian citizens.
Opponents of Tennessee’s expressive legislation have pointed out that it does not achieve any practical purpose, but is likely to result in positive harm to the state because it contravenes national norms. It will hurt the tourist trade and the convention trade (both important for the state’s faltering economy), discourage firms from locating in Tennessee and discourage many people who might to choose to relocate there. But contravening national norms, whatever its consequences, seems to be the precise purpose of this legislation. It is a device by which majorities in the nation’s conservative states – primarily in the Old Confederacy, of course – can cry out against social trends that are moving strongly in the opposite direction. While gun control may not be making much progress (although its opponents seem to fear it will), there is little question that secularism is on the rise across the nation, that there has been dramatic progress for LGBT in the past decade, and that the current generation of college students holds increasingly progressive attitudes about diversity and sexual identity issues. State legislatures are generally unable to alter these trends. Even as expression, many of the statutes they are enacting are likely to fail. Tennessee’s Bible bill, and any interpretations of the pastor bill that go beyond existing Supreme Court doctrine, will be invalidated by the federal courts, while its restrictions on diversity efforts may well endanger essential federal funding for the University. It only purpose, then, is as a cri de coeur against modernity.
Maybe it’s best, from a progressive standpoint, that these highly conservative state legislatures (Republicans in Tennessee hold comfortable super-majorities in both houses) occupy themselves with expressive legislation rather than attempting to achieve more substantive goals. The proper response in this case might be to accept these statutes with a resigned shrug when they don’t infringe on individual rights (as in the case of the state rifle law or the pastor bill) and oppose them when they do (as in the case of the bathroom or state book bills) through federal action or privately-organized boycotts. But a better strategy might be to try to shame these legislatures out of occupying themselves with this sort of political grandstanding and address substantive issues. Sandy Muir thought that state legislatures functioned as schools (William K. Muir, Legislature, 1985), educating their relatively untrained members through the process of confronting serious issues. Perhaps legislators like those in Tennessee are simply uneducable, but perhaps they would learn something about the complexities of current issues involving their state’s economy, health, education and welfare if they felt compelled to confront them.
Edward L. Rubin is University Professor of Law and Political Science at Vanderbilt University. You can reach him by e-mail at ed.rubin at Law.Vanderbilt.Edu