HB 1971 and the Closing of Tennessee’s Courts

Recently, a highly placed legislator offered several arguments in support of HB 1971. Those points deserve a careful examination.

1. Tennessee’s Courts Have Been Open for 222 Years but did not allow the People to sue the State until 2018.

Statement by legislator: It is difficult to fathom how Tennessee’s constitutional framework could suddenly be considered problematic after 222 years.

From the beginning, the Tennessee Constitution guaranteed that courts would remain open to the People. Article XI, §17 of the Declaration of Rights states:

“That all courts shall be open; and every man, for an injury done him in his lands, goods, person, or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial, or delay. Suits may be brought against the State in such manner and in such courts as the legislature may by law direct: Provided, The right of bringing suit be limited to the citizens of this State.”

The proposed statute—if passed—would effectively disenfranchise “every man” from seeking recourse in the courts when the legislature passes unconstitutional or illegal laws. Such a restriction stands in direct conflict with the constitutional guarantee that the courts “shall be open.”

2. The 2018 Law Surrendered State Sovereignty Immunity.

Supporters now claim that the 2018 law created a crisis for state sovereignty. Yet these same voices were largely silent when the bill was introduced and passed.

Why? Because everyone understood at the time that no sovereignty was being surrendered.

The legislature remains free to pass whatever legislation it chooses and send it to the governor. If the governor signs it—or if a veto is overridden—it becomes law. Nothing about the 2018 statute prevents legislators from carrying out their delegated duty to enact laws.

What the statute did do was clarify the rights of citizens to challenge unconstitutional actions.

Ironically, the language in the current proposal makes the issue unmistakably clear. The bill states:

A cause of action does not exist under this section:
(1) To seek damages; or
(2) To challenge the validity or constitutionality of any state statute.

The phrase “does not exist” cannot be reconciled with the constitutional guarantee that courts “shall be open.”

In legal language, “shall” is mandatory. Declaring that a cause of action “does not exist” directly contradicts that constitutional command.

3. Courts are not the Proper Venue to Adjudicate Constitutionality of Statutes.

Recent events demonstrate why judicial review remains necessary.

Two statutes passed by the General Assembly have already been deemed unconstitutional by Tennessee’s Attorney General, Jonathan Skrmetti, who declined to defend them in court.

First, the Knox County religious charter school statute. The Attorney General refused to defend the law because it does not withstand constitutional scrutiny.

Second, a lawsuit brought by several Metro Nashville City Council members regarding Tenn. Code Ann. §§ 7-68-103(b) and 7-68-104(e). The case concluded with taxpayer funds being used to pay the plaintiffs’ legal fees after the state again declined to defend the legislation.

These are not hypothetical concerns. They are real examples of laws passed by the legislature that could not survive constitutional review.

4. There should be no Injunctions Against Unconstitutional Actions of the General Assembly.

Supporters of HB 1971 also criticize injunctions issued against state actions involving abortion restrictions, redistricting, hemp regulations, voter restoration, and other issues.

But injunctions are a normal part of constitutional governance. They exist precisely because courts must sometimes halt unconstitutional actions—whether those actions originate from legislation or administrative rulemaking.

If legislators believe judges are repeatedly ruling incorrectly, the Tennessee Constitution provides a remedy: the General Assembly holds the power of impeachment.

If the problem truly lies with judges, why has that remedy not been pursued?

Legislators Should Read the Constitutions They Swear to Uphold

Tennessee’s history includes centuries of legislation that conflicted with constitutional rights.

Consider Tennessee’s first anti-gun statute in 1801, which criminalized carrying a handgun despite the state constitution’s recognition in 1796 that free people possess the right to bear arms. The Tennessee Supreme Court reaffirmed this principle in Andrews v. State (1871):

“[T]he right to keep arms involves, necessarily, the right to use such arms for all the ordinary purposes, and in all the ordinary modes usual in the country…”

More recently, the U.S. Supreme Court reinforced the constitutional standard in New York State Rifle & Pistol Association v. Bruen (2022):

“When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct… Only if a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s unqualified command.”

These rulings illustrate a fundamental truth: courts exist to ensure that governments remain within constitutional limits.

A Simple Principle

Perhaps legislators should spend more time reading the constitutions they swear to uphold—and the rights of the People enumerated within them.

Because two principles remain clear:

A state may provide more liberty than the federal Constitution guarantees.
But it may never provide less.

Secondly, Justice Clarence Thomas lays out this accepted premise:

“We as a nation adopted a written Constitution precisely because it has a fixed meaning that does not change... Aside from an amendment adopted pursuant to the procedures set forth in Article V, the Constitution’s meaning cannot be updated, or changed, or altered by the Supreme Court, the Congress, or the President.”

Or the General Assembly of Tennessee.