Document Type
Article
Publication Date
Winter 2022
Abstract
The Constitution of the State of Tennessee, in its current form, offers to the citizens of the Volunteer State a "Declaration of Rights" that prevents abuses by those in power against the governed. To paraphrase late Associate United States Supreme Court Justice Antonin Scalia, the Tennessee Constitution, which was adopted following the state's secession from and eventual return to the United States during the Civil War, continues to serve as the charter of Tennesseans' liberties. Indeed, the Tennessee Constitution's Declaration of Rights proclaims in the very first section, "[A]ll power is inherent in the people, and all free governments are founded on their authority, and instituted for their peace, safety, and happiness .... " Even still, over the last decade, the rights so loftily enshrined in the Tennessee Constitution for the "peace, safety, and happiness" of Tennesseans have slowly been stripped away and weakened by the Tennessee Supreme Court acting hand-in-hand with the Tennessee General Assembly.
This Article argues that since Justice Page's confirmation, the Tennessee Supreme Court, working in concert with the Republican-controlled General Assembly, has stripped and weakened Tennesseans' rights under the State Constitution's Declaration of Rights. Relying on policy justifications such as the advancement of law and order and creating a welcoming business climate, Tennessee's government has promoted the interests of government actors and corporate entities over those Tennesseans whose "peace, safety, and happiness" the government was formed to protect. The competing policy arguments are rather clearly delineated. On one hand, the State can encourage law enforcement to act aggressively to ferret out crime consistent with the obligations of the United States Constitution alone, and the government can incentivize business investment in the State through tort reform that is favorable to corporate defendants. On the other hand, the State can protect Tennesseans' rights, as expressed in the Declaration of Rights, by requiring the police and prosecutors to jump through additional hoops to investigate and interact with citizens, and by holding the right to a jury sacrosanct for Tennesseans' who are injured and seek a remedy in the State's courts. This Article demonstrates that the former argument is currently winning the day in the Volunteer State, both in the General Assembly and at the Supreme Court.
This Article does not, however, seek to determine which of these positions is better for Tennessee on balance. Rather, this Article offers the simple fact that, based on a review of the record of cases considered by the Tennessee Supreme Court since Justice Page's confirmation, Tennesseans' rights that have traditionally been protected are no longer receiving the same deference. This is not an opinion; it is a fact. Through disregarding long-standing precedent of the State's high court, the modern court has weakened the Declaration of Rights.
Recommended Citation
Bailey D. Barnes,
A Declaration of Rights Lost: The Diminution of Tennesseans' Civil Rights, 16 Tennessee Journal of Law and Policy 5
(2022).
Available at: https://scholarship.law.missouri.edu/facpubs/1284