Tennessee Right-To-Work Amendment Deserves A Bit Of Review Before You Head To The Polls (Op-Ed)

Image Credit: TN Secretary of State

By Gary Humble [Tennessee Stands] –

You should know that in the upcoming general election on November 8th, you will have the opportunity to vote on four (4) proposed amendments to the Tennessee Constitution. I will address the other three at another time. Here, I am writing about Right to Work, which will appear as Constitutional Amendment #1 on the ballot.

Let me first be very clear. I fully support the fact that Tennessee is a right to work state and has been since 1947. I do believe that our statutes declaring a right to work have been part of Tennessee’s success story economically and I believe that those statutes appropriately limit the power of unions and protect the rights of individuals against discrimination as to whether or not they are part of a labor union. I am also aware that Democrats and the current administration in the White House would like to further solidify the influence of unions around the country and work to abolish right to work protections in 27 states.

Despite my support of right to work protections and an understanding of the threat unions pose to pushing the leftist agenda, I am cautious when it comes to amending our state constitution for this purpose.

Consideration #1: Putting this amendment in our state constitution will NOT protect our right to work laws from the actions of Congress.

Right to work is essentially protection from discrimination. These protections are not found in our constitution, but appropriately found in statute. Consider that civil rights protections from the 1964 Civil Rights Act are not enshrined in our state constitution. Also consider that protections for the disabled found in the 1991 Americans with Disabilities Act are not enshrined in our constitution. They are found in our state statute and supported by acts of Congress.

One of the reasons being given by the “Yes on 1” committee to support this amendment is that we must secure this right in our state constitution to preempt any pending federal action from a Democrat-controlled White House that wants to remove right to work protections in states.

Please hear this. Any laws passed by Congress are the supreme law of the land according to our U.S. Constitution. If any section of our state constitution is found to be in conflict with an act of Congress, then that section would be held unconstitutional.

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.~ U.S. Constitution Article VI, Clause 2

It can certainly be argued that Congress should not even address labor unions because it has not been given the power to do so. Thereby, per the 10th Amendment, that power would be reserved to the states, or to the People.

That argument aside, unions came to power across America because of the National Labor Relations Act (NLRA) of 1935. It was the Taft-Hartley Act that passed our 80th Congress in 1947 that amended the NLRA and paved the way for states to enact right to work laws. It is worth noting that this act passed Congress with the support of Democrats and even in Tennessee, our right to work law was enacted in 1947 by a Democrat-controlled General Assembly.

The fear now is that Congress will pass the Protecting the Right to Organize (PRO) Act of 2021 that would effectively remove the ability for states to enact right to work laws. So, the Yes on 1 committee is running ads telling voters, “Don’t let the DC Swamp steal your right to work.” Unfortunately, those marketing slogans simply do not represent the truth.

If Congress does indeed pass the PRO Act (which would be unfortunate and hopefully will be stopped if Republicans are successful in the midterm elections), it would render right to work unconstitutional in Tennessee regardless of amending our constitution. Again, per Article VI, acts of Congress are the supreme law of the land. This action would rightfully trigger Attorneys General from right to work states to take the federal government to court.

This is not a reason to amend our state constitution.

Consideration #2: It is plausible that there will be unintended, or unforeseen consequences to a change in our constitution.

Here is the amendment to Article XI of the Constitution of the State of Tennessee as proposed:

It is unlawful for any person, corporation, association, or this state or its political subdivisions to deny or attempt to deny employment to any person by reason of the person’s membership in, affiliation with, resignation from, or refusal to join or affiliate with any labor union or employee organization.

Of the 27 states which currently have enacted right to work law, eight (8) of those states have right to work in their constitutions (Arkansas, Arizona, Florida, Nebraska, South Dakota, Kansas, Mississippi, and Oklahoma). The proposed amendment here in Tennessee is vague, leaves room for interpretation and I fear could be taken advantage of in a court.

For example, this proposed amendment would protect an employee from discrimination based on being part of a labor union or “employee organization.” One question might be, what exactly is an “employee organization?”

While that phrase is mentioned here in this amendment, it is not defined. And anything that is not expressly defined may now be defined by interpretation in the court. Some of the states which have right to work in their state constitution indeed addressed this issue upfront. For example, both provisions in the Oklahoma and Nebraska constitutions use the phrase “labor organization,” but left no room for interpretation and have expressly defined its meaning.

The term “labor organization” means any organization of any kind, or any agency or employee representation committee or plan, which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work.” ~Nebraska Const. Article XV § 14

It is worth noting that in all current constitutional right to work provisions in the eight (8) states previously mentioned, the phrases labor union and/or labor organization are used. The Tennessee Constitution would be the first ever to use the phrase employee organization. Meaning, there is currently no court precedent in determining the meaning of that phrase in a state constitution concerning the right to work. That alone should give pause in adopting this amendment.

To some, this might seem trivial, and I might sound like an alarmist. But to others, you understand that activist judges use their perceived power to interpret through the courts by redefining words or phrases to fit their intentions. That is precisely how we ended up with Roe v Wade and a corrupt 1973 court literally redefining the word liberty in the 14th Amendment.

Consideration #3: By constitutionally forbidding one type of employment discrimination, we may be de facto communicating that other forms of discrimination are allowed. Let me explain.

There are several ways, I suppose, that employers can discriminate or put undue burdens on individuals as conditions of employment. Most recently, we are dealing with mandates from employers over vaccines and possible future requirements for some sort of medical treatment. Why would our constitution only prohibit one form of discrimination, but not address all possible forms of discrimination? By only addressing one form of employment discrimination in our constitution, a court may in the future determine that other forms of discrimination are constitutionally permissible, like medical discrimination.

For the last two years, Republican leadership balked at the idea that we should protect an employee’s right to choose whether or not they should take a vaccine. They argued that the state had no right to tell an employer that they could not mandate a vaccine for employees because of private property rights.

But here, they have abandoned that principle and are fine with restricting a business owner’s supposed right to make certain requirements of their employees. See the disparity in the following statements.

  1. A business owner cannot require an employee to be part of a labor union or pay union dues as a condition of employment.
  2. A business owner can require an employee to take a vaccine as a condition of employment.

Currently, your state Republican leadership holds both statements to be true. Yet, in terms of protecting employees from discrimination, these statements stand in direct contrast to each other.

The problem here is that we are not making a principled argument with this proposed constitutional amendment. We are simply making an economic one.

In closing, I want to reiterate, I fully support our current right to work state law. Part of the messaging from the folks running the Yes on 1 campaign is that if we do not get this amendment into our constitution, then a future state legislature might opt to repeal the current right to work laws. Admittedly, that is true. The fact is that any future legislature may repeal the laws passed by a prior legislature. That is the nature of representative government. Right to work has persisted by state statute now for 75 years because it works. My guess is that it will continue to work for another 75 years.

Gary Humble is the founder and executive director of Tennessee Stands, an organization working to secure liberty and hold elected officials accountable to the Constitution through legislation, litigation, and education. Follow Gary @garyhumble and visit www.tennesseestands.org.

One thought on “Tennessee Right-To-Work Amendment Deserves A Bit Of Review Before You Head To The Polls (Op-Ed)

  • October 4, 2022 at 1:37 pm

    Slight disagreement and a comment. Laws passed by Congress in pursuance of the Constitution trump state laws not just any laws passed by Congress. We have accepted that false premise for too long and to our detriment. As to the notion that having it in our state Constitution would protect us that assumes our state will tell the feds to pound sand. I wish they would but their cowardly response to the Supreme Court opinion in 2015 concerning marriage tells they wouldn’t and marriage between a man and a woman was in our state constitution. Many that were in office then still are. So with cowards in office and a cowardly Governor to boot the amendment won’t guarantee anything.


Leave a Reply

Your email address will not be published. Required fields are marked *