By Marjorie Cohn / Truthout
On March 30, three days after a man armed with two legally purchased assault weapons killed six people at The Covenant School in Nashville, Tennessee, more than 1,000 high school and college students marched to the State Capitol and demanded gun reform. They shouted, “Ban assault weapons” and “We don’t want your thoughts and prayers.”
Three Democratic representatives — Justin Jones, Justin Pearson and Gloria Johnson — joined the peaceful protest when it entered the chamber of the Tennessee State House of Representatives. On April 6, a Republican supermajority in the House voted to expel Jones and Pearson, both of whom are Black, from their seats. Johnson, who is white, kept her seat by one vote.
Thankfully, both Jones and Pearson will probably retain their seats. The Nashville Metropolitan Council voted unanimously to reinstate Jones. And the Shelby County Board of Commissioners voted unanimously to reappoint Pearson to his seat.
State rules require that elections for both seats still proceed. A primary must take place within 60 days and a general election must be held within 107 days. Both Jones and Pearson will seek reelection.
This is only the third time since the Civil War era that the Tennessee House has expelled legislators. One of the prior expulsions was for taking a bribe and the other was for several allegations of sexual harassment.
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In 2010, GOP lawmakers gerrymandered the state in order to confine Democrats to fewer districts. The 2012 election gave Republicans a supermajority in both houses of the legislature. “In Tennessee, the General Assembly has carved up the state’s more Democratic-leaning cities and all but guaranteed that the majority of political representation is determined in Republican primaries instead of in general elections, leaving lawmakers more responsive to a far-right base,” The New York Times reported.
Even before the expulsions, Tennessee was the least democratic state in the United States, Vox’s Zack Beauchamp noted. Republican control of the state has resulted in an increase in anti-democratic tendencies.
Both Jones and Pearson are community organizers. Jones led the successful struggle to remove the bust of a Confederate general from the State Capitol. Pearson spearheaded the victorious movement to prevent the Byhalia Connection crude oil pipeline from going through a historic Black neighborhood.
Expelling Jones and Pearson from the legislature would have disenfranchised 130,000 Tennesseans whom the two men represent.
A “Dark, Dark History”
The GOP lawmakers gave Jones five minutes to speak before they voted to oust him. Jones told them, “We were calling for a ban of assault weapons, and the response of this body is to assault democracy.”
Jones said Tennessee was “going back to some dark, dark history ,” noting, “A state in which the Ku Klux Klan was founded is now attempting another power grab by silencing two of the youngest Black representatives and one of the only Democratic women in this body. That’s what this is about, let us be real today.”
Pearson, speaking at an Easter service at The Church of the River in Memphis, said, “The Republican-led supermajority of the Tennessee General Assembly sought to have a political lynching of three of its members because we spoke out of turn against the status quo of the government, after the tragic deaths of six people in the shooting at The Covenant School in Nashville.”
The day after his expulsion, Jones said, “What we saw yesterday in Tennessee was an attack on democracy and very overt racism , as you can see the two youngest Black lawmakers were kicked out, but our colleague, my dear sister Gloria Johnson, a white woman, was not.”
The Expulsion Resolution Charged “Disorder and Dishonor”
The resolution of expulsion quoted Article II Section 12 of the Tennessee Constitution, which says:
Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two-thirds, expel a member, but not a second time for the same offence; and shall have all other powers necessary for a branch of the Legislature of a free State.
It also cited the Permanent Rules of Order of the Tennessee House of Representatives for the One Hundred Thirteenth General Assembly, which include “preserving order, adhering to decorum, speaking only with recognition, not crowding around the Clerk’s desk, avoiding personalities, and not using props or displaying political messages.”
The resolution charged that Jones, Pearson and Johnson “did knowingly and intentionally bring disorder and dishonor to the House of Representatives” and that they “shouted, pounded on the podium, led chants with citizens in the gallery, and generally engaged in disorderly and disruptive conduct, including refusing to leave the well, sitting on the podium, and utilizing a sign displaying a political message.” It noted that Jones and Pearson used a bullhorn.
Tennessee House Speaker Cameron Sexton claimed that Johnson wasn’t expelled because she didn’t use a bullhorn. But Johnson said, “It might have to do with the color of my skin.”
Sexton compared this protest with the January 6 insurrection, saying , “what they did today was equivalent — at least equivalent, maybe worse, depending on how you look at it — of doing an insurrection in the Capitol.”
Attorneys for Jones and Pearson, who include former Attorney General Eric Holder, wrote in an April 10 letter to Sexton, “Their partisan expulsion was extraordinary, illegal, and without any historical or legal precedent.”
In light of reported threats of retaliation if Pearson was reinstated, the attorneys stated, “The House must not now compound its errors by taking any further retributive actions,” adding, “Any partisan retributive action, such as the discriminatory treatment of elected officials, or threats or actions to withhold funding for government programs, would constitute further unconstitutional action that would require redress.”
The Cases of John Wilkes, Adam Clayton Powell and Julian Bond
“The Tennessee legislature’s actions in expelling the two Black members harken back to the efforts of George III, who decided that the people of London could not elect John Wilkes and expelled him from the House of Commons,” California criminal defense attorney Charles Sevilla told Truthout. In addition to his biographical essay on the historic Wilkes, Sevilla has published three satirical novels about the modern-day John Wilkes, a Manhattan criminal defense attorney.
Wilkes had incurred the King’s wrath with his advocacy of free elections, freedom from arbitrary seizure and arrest, and freedom of the press. “His constituents promptly reelected him only to see Wilkes expelled two more times in short order,” Sevilla said. “Finally, the King’s men decided after Wilkes was overwhelmingly reelected yet again, that no vote for Wilkes could be counted. And so, he was expelled yet again. But Wilkes had the last laugh.”
“After being elected Lord Mayor of London and returned to Parliament, Wilkes lobbied for that body to admit that his expulsion was without authority, and they finally did,” Sevilla added. “This precedent was cited by the U.S. Supreme Court almost 200 years later in Powell v. McCormack, when the Court decided Congress overstepped its authority in expelling Adam Clayton Powell. The lessons of history evidently were lost on the Tennessee Republicans last week.”
Powell was the first African American elected to Congress from New York and was reelected for nearly three decades. He became a powerful national politician from the Democratic Party and a prominent spokesperson for civil rights. In 1967, citing allegations that Powell had misappropriated public funds and abused the process of the New York courts, the House of Representatives denied Powell his congressional seat.
In 1969, the Supreme Court held in Powell v. McCormack that the House of Representatives had no authority to exclude Powell from membership in Congress because he was not ineligible to serve under any provision of the U.S. Constitution, which only set forth qualifications of age, citizenship and residence, all of which Powell met.
“A fundamental principle of our representative democracy is, in [Alexander] Hamilton’s words, ‘that the people should choose whom they please to govern them,’” Chief Justice Earl Warren wrote for the court. He quoted James Madison’s “warning, borne out in the Wilkes case … against ‘vesting an improper & dangerous power in the Legislature.’”
Julian Bond, a Black man, was elected to the Georgia House of Representatives in 1965. But because of his statements criticizing the U.S. war in Vietnam and the Selective Service laws, the Georgia House decided in 1966 that Bond could not be seated as a member of the House. Bond met all of the Georgia Constitution’s requirements for membership in the Georgia Legislature, including age, citizenship and county residency.
The U.S. Supreme Court ruled that Bond’s disqualification violated his right to free expression under the First Amendment. Chief Justice Warren wrote for the unanimous court in the 1966 case of Bond v. Floyd:
Legislators have an obligation to take positions on controversial political questions so that their constituents can be fully informed by them, and be better able to assess their qualifications for office; also so they may be represented in governmental debates by the person they have elected to represent them.
Senate Democrats Call for DOJ Probe Into Expulsions
On April 12, Democratic Senators Raphael Warnock (Georgia), Chuck Schumer (New York), Christopher Murphy (Connecticut), Alex Padilla (California) and Brian Schatz (Hawaii) wrote a letter to Attorney General Merrick Garland, urging the Department of Justice to launch an investigation into the expulsion of Jones and Pearson “to determine whether any violations of the United States Constitution or federal civil rights laws have occurred.” They cited the Supreme Court’s decision in Bond v. Floyd.
The senators noted the peaceful demonstrations that followed the “horrific shooting” on March 27, which they called “deeply moving expressions of democratic participation follow America’s long tradition of peaceful, non-violent protest, perfected during the struggles and triumphs of the Civil Rights Movement.”
“We believe the repeated and preventable slaughter of our children should frustrate and disrupt decorum because this horrifying pattern must never be accepted as business as usual,” the senators wrote. “Moreover, we do not believe that breaking decorum is alone sufficient cause for employing the most draconian of consequences to duly-elected lawmakers.”
The senators added, “We cannot allow states to cite minor procedural violations as pretextual excuses to remove democratically-elected representatives, especially when these expulsions may have been at least partially on the basis of race.” They mentioned reports that “emboldened Tennessee officials” have threatened to withhold funds from Memphis if it sent Pearson back to the legislature, “a clear attempt to further disenfranchise voters and a blatant affront to our constitutional values.”
In their letter, the senators asked Garland to “immediately investigate” whether the Tennessee state legislature violated the rights of: 1) the citizens of Memphis and Nashville to be represented by legislators of their choice under the U.S. Constitution’s guarantee of a Republican form of government; 2) Jones and Pearson under the Fourteenth Amendment or civil rights statutes that prohibit discrimination on the basis of race; and 3) Jones and Pearson under the First Amendment’s protection of the rights of speech and assembly.
Three Congressmembers Charge Tennessee House With “Fascism”
Progressive members of the U.S. House of Representatives were furious at the expulsion of Jones and Pearson.
“This is fascism. Expelling your political opponents for demanding action on gun violence when children are dying is disgusting,” Rep. Rashida Tlaib (D-Michigan) tweeted.
Rep. Summer Lee (D-Pennsylvania) also called the expulsion “straight-up fascism in its ugliest, most racist form.”
Likewise, Rep. Jim McGovern (D-Massachusetts) tweeted, “This is fascism, full stop.”
Robert Weissman, president of Public Citizen, said in a statement, “This was a racist and disproportionate act of retaliation.” He pointed out the irony in GOP legislators calling the protest on the House floor an “insurrection” when not one member of Congress was expelled for promoting Donald Trump’s false claims that the election was stolen “or for supporting the attempted coup carried out at Trump’s behest.”
Marjorie Cohn is professor emerita at Thomas Jefferson School of Law, former president of the National Lawyers Guild, and a member of the national advisory boards of Assange Defense and Veterans For Peace, and the bureau of the International Association of Democratic Lawyers. Her books include Drones and Targeted Killing: Legal, Moral and Geopolitical Issues. She is co-host of “Law and Disorder” radio.