On the ballot right now in Nashville is a charter amendment that, in a nutshell, would provide an employment preference for Davidson County workers on major public works projects. By mandating that Davidson County residents perform at least 40% of the work on publicly funded construction, the amendment would place workers who reside outside of Davidson County at a significant disadvantage under the law.
If the local hire amendment becomes law, it will almost certainly see the inside of a courtroom because it has a number of constitutional problems, as thoroughly outlined here. One such constitutional problem is the unequal treatment of people under the law, also known as discrimination. The expected response of the courts is an illustrative example of both how courts have misapplied Tennessee’s Constitution, and the importance of addressing that problem going forward.
Both the U.S. and Tennessee Constitutions address unequal treatment under the law. Despite the obvious differences in wording, Tennessee courts generally think that the Tennessee and U.S. equal protection guarantees are identical, meaning that if discriminating against out-of-towners is OK under the U.S. Constitution, then it is OK under the Tennessee Constitution. This is a shame. State constitutions were expected to afford citizens greater rights than those under the federal constitution. One that did nothing more than the U.S. Constitution would be frivolous.
The U.S. Constitution and Tennessee Constitution were prompted by a very different set of circumstances. The U.S. Constitution’s guarantee of equal protection under the law was part of the Fourteenth Amendment, passed after the Civil War to protect newly freed slaves. Tennessee’s prohibition against “private laws,” that is, laws that benefit some people but not others, was added in 1835, long before the U.S. got around to guaranteeing equal treatment. It was aimed at curbing the General Assembly’s habitual practice of passing preferential laws for certain individuals. Frustrated by the unfairness of preferential laws and, frankly, how time consuming it was to pass laws that just benefitted one party, the Tennessee Constitutional Convention tried to end the practice with this constitutional provision. The preferential laws mentioned at the Convention were all aimed at bestowing some financial benefit to someone, like giving them valuable liquor licenses, fish traps, and mill dams. After the 1835 convention, if liquor was going to be legally sold, then the legislature had to make it legal for everyone. No more would the legislature be able to single out certain groups for favorable treatment.
This takes us back to the local hire amendment. If the amendment passes, Davidson County workers would be given preference under the law. If you live in a surrounding county, you could be denied work simply based on where you live. The amendment’s discriminatory character isn’t hidden; discrimination is the essence of it. This would be an obvious case of unequal treatment under the law. It creates an enormous financial benefit for Davidson County workers who are friendlier with the unions that are, not coincidentally, behind the amendment in the first place. We have not come far from 1835, only instead of fish traps and liquor licenses, here the politically connected seek to benefit from preferences in public works projects.
Local hire may be acceptable under the U.S. Constitution, but courts should be far more skeptical of it under the Tennessee Constitution. A court would not scrutinize the amendment’s naked discrimination against out-of-town residents under the U.S. Constitution (the Fourteenth Amendment) with the same rigor that it would with racially discriminatory legislation—an unfortunate reality, but hardly surprising given the Fourteenth Amendment’s historical origin. But if a court was no more rigorous in considering local hire under the Tennessee Constitution, then it is outright disappointing. After all, it was economic discrimination, not racial discrimination, which prompted the Private Bill provision in the first place. Courts should be extremely wary.
Nevertheless, Tennessee courts typically rule that there is no difference between the state and U.S. constitutions. This is bad history that can unfortunately lead obnoxious laws that really hurt working class people and do a disgrace to the basic right to be treated equally under the law. Tennessee’s Constitution is not merely redundant. It was crafted to put an end to laws that favor some at the expense of others. Time will tell if the Tennessee Constitution will regain its historical purpose and strength. If the local hire amendment passes, it may provide the fodder.