LETTER TO THE EDITOR
Monday, April 11, 2011 3:25 pm

Last week, while discussing the resolution removing law enforcement powers of constables with Courier Editor Kevin Halpern, I stated that the motivation was arbitrary and if challenged in court, that I thought it would be overturned. The law allowing the resolution is relatively new and the use of it has never been challenged in courts so I mentioned cases of zoning issues, and other arbitrary acts of county government bodies that are routinely overturned buy the courts strictly because the where arbitrary. Kevin asked me where in law is the protection against arbitrary power found. I am embarrassed to say, I didn’t have an answer. I believed to my core it was true, we have that right, but I had just never given any thought until asked. So I set out to get an answer.

As it turns out the answer can be found in the Tennessee Constitution and the powers contained therein specifically the relevant sections of the Declaration of Rights. Most States have similar rights in their State Constitution. The Tennessee Declaration of Rights is not only incorporated into the State Constitution, but the State Constitution begins with the Declaration of Rights, which at 34 sections is the most lengthy article of the Tennessee Constitution-a testimony to just how important the framers of the Tennessee Constitution believed the general rights of the people to be.

The first two sections of the Declaration of rights declare from where government derives its power, and place in written law the natural right of the people to resist arbitrary power:

§ 1. Powers of people
That all power is inherent in the people, and all free governments are founded on their authority, and instituted for their peace, safety, and happiness; for the advancement of those ends they have at all times, an unalienable and indefeasible right to alter, reform, or abolish the government in such manner as they may think proper.

§ 2. Doctrine of non-resistance
That government being instituted for the common benefit, the doctrine of non-resistance against arbitrary power and oppression is absurd, slavish, and destructive of the good and happiness of mankind.

When our State Constitution says that all power is "inherent in the people" what does it mean?  Although the general laws of Tennessee offer some flexibility to local governments by allowing private acts and local charters, those provisions were not intended to give any local governing body the authority to interfere with or take away the rights and responsibilities granted by statute to another duly elected board or the right to undermine the vote of the people. To allow a county commission or county official to interfere with the duties of an elected officer not only contravenes state law, but also disenfranchises the community.

When a government or an individual part of the government begins to take powers unto itself because of personal whim, personal retaliation or even without rational thought, its power becomes arbitrary.

When a county commission makes the assumption that it may take unto itself the authority to enact things which are contrary to both the written constitution and the long-established individual rights of the citizenry, the framers of the Tennessee Constitution say that it is "absurd" and "slavish" not to resist the arbitrary power of the government. Clearly, the framers of the Tennessee Constitution were such believers in limited government that the first two sections of our Constitution are devoted to limiting the power of the State-by open resistance if ever necessary.

Arbitrary decisions are not necessarily the same as random decisions. Arbitrary is defined as:  1. Based on random choice or personal whim, rather than any reason or system. 2. (of power or a ruling body) Unrestrained and autocratic in the use of authority

The US Supreme Court has overturned laws for having "no rational basis." And Tennessee Courts have routinely overturned acts by county governments as being “arbitrary” One New York case states, "the courts cannot interfere unless there is no rational basis for the exercise of discretion or the action complained of is 'arbitrary and capricious.' " Matter of Pell v. Board of Education, 34 N.Y.2d 222, 231 (1974)

It is my understanding that the resolution regarding constables brought to the table January 15th was motivated by a personal encounter between a commissioner and a constable. From what I have been told, I personally don’t believe the encounter should have ever happen and I will not defend the actions of that constable on that day. However, two wrongs do not make a right. Instead of trying to resolve the conflict in a fashion that would have provided an education to the constable in question, the commissioner chose to violate his own oath of office to uphold our Constitution, and used his powers to not only go after that particular constable, but to arbitrarily go after all constables that were overwhelmingly voted into office by the people. The commissioner was joined by a couple of other commissioners with personal agendas. One supporting commissioner in response to the question, “If there is a reason for the resolution, tell me what we have done wrong?” blurted out “Because you are not needed!” Really, we do not have enough deputies, crimes are reported everyday, the sheriff department has a solve rate of burglaries of only 9.5 percent --- and we don’t need help?  A response that law enforcement elected by the people not being needed in this day and age is a very arbitrary response.

Mike Gannon has been our county Executive for over 8 years. Mike has told me that there has never been a complaint made to his office regarding constables. The office of constable is misunderstood, and often undermined by other elected officials. Constables have value and are used extensively in neighboring counties. That is important to remember at budget time when the city police or the sheriff come asking for more money to run their departments. maybe they need to be asked, "What have you done lately to work with 'our' county constables?"

I believe the electorate and Tennessee's residents are best served when the system of accountability established by the state is allowed to function and the vote of the people is respected. As to arbitrary power by our local officials: We are called upon by out Constitution to resist it.  Samuel Adams wrote, "If we suffer tamely a lawless attack upon our liberty, we encourage it, and involve others in our doom." (Essay in Boston Gazette, 1771)

Jim Gibbs,  P.O.S.T. Instructor
Cannon County Constable
jimgibbs@cannoncounty.net