When All You Have Is A Hammer, Everything Looks Like A Constitutional Nail

The great mustachioed philosopher Burt Reynolds once explained, “When you tell somebody somethin’, it depends on what part of the country you’re standin’ in, as to just how dumb you are.”  That’s the kind of simple wisdom that will almost always make Jerry Reed sing about you.

That said, ignorance is not only defined and constrained by geography; you could just as accurately say that how dumb a person’s statement is depends on who they are speaking to and the context of their remarks.

For example, if I were sitting at a bar with some random political bloggers, I could probably opine on m-theory or the legacy of Karch Kiraly with some authority.  I’m no expert on either, but I am loosely familiar with both.[foot]Because, above all else, I’m a huge nerd. Never forget that.[/foot] Replace those other political bloggers with theoretical physicists who play professional volleyball, however, and my contributions to the discussion would be much less insightful or helpful, and I would certainly run the risk of saying something so incorrect that the people who actually knew better would immediately realize my relative ignorance.

Which brings me to Rep. Kim Hammer (R-Benton).[foot]Who is neither a volleyball-playing theoretical physicist, nor (as is important to this post) a lawyer.[/foot]

Speaking from the House well today in support of Sen. Bart Hester’s pro-discrimination bill SB 202, Rep. Hammer offered the following constitutional analysis of the bill:

I’m coming to speak in favor of the bill on one point that hopefully a question might be answered.  There seems to be a little bit of controversy as far as, constitutionally, whether this bill upholds to the mustard [sic] test.  I believe I remember sitting in a committee meeting and listening the other day that this bill has been upheld by the Tennessee Supreme Court. […] It just seems to me that, if one supreme court of the land has already upheld the framework of this, that it makes it constitutional. I’d be able to vote for this and uphold my constitutional values and can do it with a clear conscience.

Last things first, yes, he said “upholds to the mustard test.” After listening four times, I’m certain of it.  But even if he had managed to say “muster” instead of “mustard,” that phrase would still be nonsensical.  Something passes a test; it doesn’t “uphold to” a test.  And maybe it’s just me, but when a person does not even know the terminology for discussing constitutionality, perhaps that person has no business opining on such things.[foot]This is doubly true where the person is confusing condiments with jurisprudential phrases.[/foot]

Secondly, the case to which Rep. Hammer is referring — Lisa Howe, et al., v. Bill Haslam — was not decided by the Tennessee Supreme Court.  It was decided by the Tennessee Court of Appeals.  So, no, the “supreme court of the land” of Tennessee did not hold anything in this instance, and Rep. Hammer’s reliance on that as proof of constitutionality is misplaced.

Most importantly, however, even the Tennessee Court of Appeals did not uphold the Tennessee version of this law.  The opinion, which I am beginning to suspect Rep. Hammer did not actually read, states:

First, although Appellants devote a considerable portion of the argument section of their brief to their argument that the provisions of HB600 violate equal protection guarantees, neither the merits nor constitutionality of HB600 are now before this Court. The only question now before us is whether any Appellant has demonstrated a distinct, palpable injury in-fact sufficient to confer standing to bring this action.

Ultimately, the court dismissed the appeal because they agreed with the trial court that the named plaintiffs did not have standing to bring the suit in the first place, as none of them had asserted a discrete, concrete injury or harm caused by the statute.  The discussion of the scope of the Tennessee statute, in addition to being prefaced with a reminder that they were not discussing constitutionality, was solely to demonstrate that the specific plaintiffs in that suit did not have standing.  That’s it.

Saying that the Tennessee Court of Appeals “upheld” the statute in those circumstances is incorrect, no matter who you say it to.  Saying it to all of the members of the House of Representatives as a key portion of your preemptive answer to a question about constitutionality? That’s a special kind of ignorant.

Or, to borrow from another classic of American film:

Maybe Rep. Hammer would have fared better if the question had been about Burning Dog Poo & The Human Response.