TBA Law Blog

Posted by: Sam Elliott on Jun 17, 2010

Journal Issue Date: Jul 2010

Journal Name: July 2010 - Vol. 46, No. 7

In August 2009, retiring Justice David Souter addressed the opening assembly of the American Bar Association's annual meeting in Chicago, sounding an alarm relative to the general public's lack of understanding of our system of government. Souter noted the sad reality that a "majority of the public is unaware of the structure of government," and fails to understand the notion of separation of powers, which itself threatens the judicial independence that we as lawyers deem critical to the continued viability of consitutional government. Seemingly to verify Justice Souter's fears, late last year I located a study undertaken by the Intercollegiate Studies Institute based on a 33-question Civic Literacy Test with questions ranging from the phrase "Government of the people, by the people, for the people" from the Gettysburg Address (many of those surveyed got this question) to the aims of the Puritans who settled in America in the 17th century (most did not). Seventy-one percent of Americans failed this particular test, with an overall average score of 49 percent. What's worse, a number of those surveyed indicated they had once served in an elected office. As a group, these former elected officials achieved an average score of 44 percent.[1]

One suspects that if the 33 questions were posed to citizens of our state, and involved issues of history and civics peculiar to Tennessee, the percentage of knowledge would be even lower. While most people would recognize the arms of their county government, such as the county court clerk, or the assessor of property, few would be able to describe the difference between the Tennessee Supreme Court and the United States Supreme Court, why the state has had three constitutions, or the fact that East Tennessee was far more Unionist in its sympathies than Confederate during the Civil War.

There are natural disadvantages to focusing on Tennessee history and civics, especially as it relates to educating our citizens and especially our young people. There are no current textbooks on either subject being used in our state's schools. Even if there were, reading oftentimes is not the most effective way to reach young people. A couple of years ago, I was told by a ranger at Fort McHenry, the famed ramparts where the Star Spangled Banner gallantly streamed, that the wonderful orientation film there was soon to be supplanted by shorter and more targeted video displays because the attention span of the public, and especially younger people, is now about eight minutes. Like the Park Service, we must look to new ways to educate the public and especially our young people.

All is not lost, however, and I believe that our people understand that their rights are protected by their knowledge of what the government is doing. For more than 20 years, I have done municipal government work in Hamilton County. Happily, the people who show up at our municipal meetings, while certainly not informed on the sometimes arcane aspects of municipal law, for the most part seem to understand their rights and the basics of our system, even if they do not know much about the Puritans or Franklin D. Roosevelt's court-packing plan, much less the issues in Baker v. Carr. Oftentimes, you see students at our meetings who are either required to attend a single meeting as part of a civics course, or who are taking a news-reporting class at a local college, or who are completing a scouting merit badge. The knowledge and understanding they gain from their experience at this very basic level of government helps ensure the future of our free system.

Given my own deep interest in Tennessee history, Justice Souter's call to action struck a particular chord. Our free government is best supported by a citizenry that understands its structure and appreciates its past. Bound by an oath that calls on them to support the Constitution of the United States and the Constitution of Tennessee, Tennessee lawyers have been free government's fiercest proponents.

In the coming year, it will be a particular focus of the Tennessee Bar Association to address these issues. It is only natural that we respond to Justice Souter's exhortation as a bar with efforts to educate our citizens and particularly our young people on matters of Tennessee history and government. As part of that effort, in the coming year, this column will, for good or ill, depart from comment on current matters and instead highlight aspects of Tennessee legal history and culture that make the lawyers of our state the unique guardians of liberty that the Tennessee Bar Association seeks to serve and support today.

Having established that I do not expect to comment much on current matters, I will depart from that briefly to express my appreciation to my predecessor, Gail Vaughn Ashworth, who has worked tirelessly for the Tennessee Bar Association for many years as general counsel, board member, officer and president. In the past year, I have frequently mentioned to my wife, Karen, my feelings of gratitude toward Gail, as she has done her best to perpetuate her legacy of service to the bar by making sure that I had the information I needed to prepare for this bar year. She did so well in that preparation that we forged on without her when she rather unexpectedly had to spend the days of our convention last month in the hospital. The unofficial theme of Gail's year as our president was to "feel the love" of all that is good within the TBA. Gail, well done. You deserve to feel the love.


  1. In the interest of full disclosure, I got 31 out of 33 on the test, missing a question relating to the political philosophy of Socrates, Plato, Aristotle and Aquinas, and a question about taxation, which was not my strongest subject in law school, nor is it my favorite subject in real life.