This article explores the constitutionalization of hunting and fishing rights and, considered within that context, the role of state constitutions. It begins by tracing hunting and fishing rights through western legal history with a special emphasis on ancient Rome, England, and the American colonies. Next, it directs attention to the existing status of hunting and fishing rights under the federal and state constitutions, including the dramatic surge in the constitutionalization of hunting and fishing rights since the mid-1990s and the reason for this surge. The article then explores the legal effect of these state constitutional hunting and fishing rights provisions and addresses the likely legal impact of Tennessee's proposed hunting and fishing rights amendment. The article concludes by considering whether this type of right is appropriate for enshrinement in a state constitution. In doing so, it explores the role of a state constitution in the modern federal system.
Jeffrey Omar Usman [FNa1]
Copyright (c) 2010 Tennessee Law Review Association, Inc.; Jeffrey Omar Usman.
The article was originally published at 77 Tenn. L. Rev. 57 (2009) and is reprinted here with permission of the Tennessee Law Review Association Inc.
*58 A RESOLUTION to propose an amendment to Article XI, Section 13, of the Constitution of Tennessee, relative to the right to hunt, fish, and harvest game.WHEREAS, the Legislature finds that hunting and fishing are honored traditions in the state of Tennessee; andWHEREAS, from the time prior to statehood, citizens have enjoyed the bounty of Tennessee s natural resources, including hunting and fishing for subsistence and recreation. Indeed, hunting and fishing are a vital part of this state s heritage and economy and should be preserved and protected; andWHEREAS, the legislative intent of this amendment is declared to be the following:(1) Hunting and fishing for the taking of game and fish are a valued part of this state s heritage and should be preserved for the people;(2) Citizens of this state should have the opportunity to take game and fish by traditional manner and means; however, game and fish management, including hunting and fishing, shall be consistent with the state s duty to honor this heritage and its duty to conserve and protect game and fish; and(3) The right of the people to hunt and fish shall be subject to reasonable regulations and restrictions as the Legislature may prescribe: now, therefore,BE IT RESOLVED BY THE HOUSE OF REPRESENTATIVES OF THE ONE HUNDRED FIFTH GENERAL ASSEMBLY OF THE STATE OF TENNESSEE, THE SENATE CONCURRING, that a majority of all the members of each house concurring, as shown by the yeas and nays entered on their journals, that it is proposed that Article XI, Section 13 of the Constitution of the State of Tennessee be amended by adding the following sentences at the end of the section:The citizens of this state shall have the personal right to hunt and fish, subject to reasonable regulations and restrictions prescribed by law. The recognition of this right does not abrogate any private or public property rights, nor does it limit the state s power to regulate commercial activity. Traditional manners and means may be used to take non-threatened species. [FN3]
The law[s] . . . allowed a qualified person to kill game on anyone's land unless specifically warned off, thereby making their right to hunt universal. . . . [A]ll the nation's small wild animals, not only those hopping over private estates, but also those found in the country's woods and commons, became the exclusive property of one social class: the landed gentry. [FN65]
Until the bringing of this action, the right to hunt on unenclosed and uncultivated lands has never been disputed, and it is well known that it has been universally exercised from the first settlement of the country up to the present time; and the time has been, when, in all probability, obedient as our ancestors were to the laws of the country, a civil war would have been the consequence of an attempt, even by the legislature, to enforce a restraint on this privilege. It was the source from whence a great portion of them derived their food and raiment, and was, to the devoted huntsman . . . a source of considerable profit. The forest was regarded as a common, in which they entered at pleasure, and exercised the privilege; and it will not be denied that animals, ferae naturae, are common property, and belong to the first taker. If, therefore, usage can make law, none was ever better established. . . . Now if the right to hunt beyond that, did not before exist, this act was nugatory; and it, cannot be believed that it was only intended to apply to such as owned a tract of land, the diameter of which would be fourteen miles. . . . The right to hunt on unenclosed lands, I think, therefore, clearly established; but if it were doubtful, I should be strongly inclined to support it. Large standing armies are, perhaps, wisely considered as dangerous to our free institutions; the militia, therefore, necessarily constitutes our greatest security against aggression; our forest is the great field in which, in the pursuit of game, they learn the dexterous use and consequent certainty of firearms, the great and decided advantages of which have been seen and felt on too many occasions to be forgotten, or to require a recurrence to. [FN90]
The inhabitants of the several States shall have liberty to fowl and hunt in seasonable times on the lands they hold, and on all other lands in the United States not inclosed, and in like manner to fish in all navigable waters, and *70 others not private property, without being restrained therein by any laws to be passed by the legislature of the United States. [FN100]
The ownership [of wild animals] being in the people of the State-the repository of the sovereign authority-and no individual having any property rights to be affected, it necessarily results, that the legislature, as the representative of the people of the State, may withhold or grant to individuals the right to hunt and kill game, or qualify and restrict it, as, in the opinion of its members, will best subserve the public welfare.Stated in other language, to hunt and kill game, is a boon or privilege granted, either expressly or impliedly, by the sovereign authority-not a right *72 inhering in each individual; and, consequently, nothing is taken away from the individual when he is denied the privilege . . . of hunting and killing game. [FN115]
Every Inhabitant that is an howse holder shall have free fishing and fowling in any great ponds and Bayes, Coves and Rivers, so farre as the sea *73 ebbes and flowes within the presincts of the towne where they dwell, unlesse the free men of the same Towne or the Generall Court have otherwise appropriated them, provided that this shall not be extended to give leave to any man to come upon others proprietie without there leave. [FN119]
[T]hese Presents shall not in any Manner hinder any of Our loving Subjects whatsoever to use and exercise the Trade of Fishing upon the Coast of New-England, in America, but they and every or any of them shall have full and free Power and Liberty, to continue, and use the said Trade of Fishing upon the said Coast, in any of the Seas thereunto adjoining, or any Arms of the Seas, or Salt Water Rivers where they have been accustomed to fish, and to build and set up on the waste Land belonging to the said Colony of Connecticut, such Wharves, Stages, and Work-Houses as shall be necessary for the salting, drying, and keeping of their Fish to be taken, or gotten upon that Coast, any Thing in these Presents contained to the contrary notwithstanding. [FN120]
And further, for the encouragement of the inhabitants of our said Colony of Providence Plantations to set upon the business of taking whales, it shall be lawful for them, or any of them, having struck whale, dubertus, or other great fish, it or them to pursue unto any part of that coast, and into any bay, river, cove, creek, or shore, belonging thereto, and it or them, upon the said coast, or in the said bay, river, cove, creek, or shore, belonging thereto, to kill and order for the best advantage, without molestation, they making no willful waste or spoil anything in these presents contained, or any other matter or thing, to the contrary, notwithstanding. [FN122]
And that the inhabitants of this province and territories thereof may be accommodated with such food and sustenance, as God, in His providence, hath freely afforded, I do also further grant to the inhabitants of this province and territories thereof, liberty to fowl and hunt upon the lands they hold, and all other lands therein not inclosed; and to fish, in all waters in the said lands, and in all rivers and rivulets in, and belonging to, this province and territories thereof, with liberty to draw his or their fish on shore on any man s lands, so as it be not to the detriment, or annoyance of the owner thereof, except such lands as do lie upon inland rivulets that are not boatable, or which are, or may be hereafter erected into manors. [FN126]
The inhabitants of this State shall have liberty in seasonable times, to hunt and fowl on the lands they hold, and on other lands not inclosed, and in like manner to fish in all boatable and other waters (not private property) under proper regulations, to be made and provided by the General Assembly. [FN136]
When we consider the crime and misery in England during the last century resulting from its private fish and game preserves, protected by its system of fish and game laws, and then consider how free from such crime and misery this state has been during the same time, it is apparent that this provision of the constitution, as construed by the people, was one of the wisest that could have been made. This decision is most far reaching in its consequences. Hitherto in our history as a state, our people, young and old, rich and poor, have fished, as a matter of right, in all the waters of the state. . . . This freedom to associate with and enjoy nature has borne fruit in the independent, liberty-loving character of our people, and has had its influence in forming a type of manhood that has had a potent influence in making Vermont to-day, in many respects, the ideal republic of the world. [FN145]
All citizens of this state shall have a right to hunt, fish, trap, and harvest game and fish, subject only to reasonable regulation as prescribed by the Legislature and the Wildlife Conservation Commission. The Wildlife Conservation Commission shall have the power and authority to approve methods, practices and procedures for hunting, trapping, fishing and the taking of game and fish. Traditional methods, practices and procedures shall be allowed for taking game and fish that are not identified as threatened by law or by the Commission. Hunting, fishing, and trapping shall be the preferred means of managing game and fish that are not identified as threatened by law or by the Commission. Nothing in this section shall be construed to modify any provision of common law or statutes relating to trespass, eminent domain, or any other property rights. [FN178]
The freedom to hunt, fish, and trap wildlife, including all aquatic life, traditionally taken by hunters, trappers and anglers, is a valued natural heritage that shall be forever preserved for the people. Hunting, fishing and trapping shall be managed by law and regulation consistent with Article IX, Section I of the Constitution of Louisiana to protect, conserve and replenish the natural resources of the state. The provisions of this Section shall not alter the burden of proof requirements otherwise established by law for any challenge to a law or regulation pertaining to hunting, fishing or trapping the wildlife of the state, including all aquatic life. Nothing contained herein shall be construed to authorize the use of private property to hunt, fish, or trap without the consent of the owner of the property. [FN180]
The people shall have the right to fish upon and from the public lands of the State and in the waters thereof, excepting upon lands set aside for fish hatcheries, and no land owned by the State shall ever be sold or transferred without reserving in the people the absolute right to fish thereupon; and no law shall ever be passed making it a crime for the people to enter upon the public lands within this State for the purpose of fishing in any water containing fish that have been planted therein by the State; provided, that the legislature may by statute, provide for the season when and the conditions under which the different species of fish may be taken. [FN183]
No law shall abridge the right of the citizen to keep and bear arms for security and defense, for lawful hunting and recreational use and for other lawful purposes, but nothing herein shall be held to permit the carrying of concealed weapons. No municipality or county shall regulate, in any way, an incident of the right to keep and bear arms.” [FN192]
[State constitutionalization] is a pre-emptive strike . . . making it more difficult for any nutty animal rights activist or anti-hunting organization to target Oklahoma. . . . [A]ny attempt to ban . . . hunting . . . would require amending the constitution. So if state lawmakers were to go insane and wanted to eliminate deer hunting, for example, it couldn't be done without a vote of the people. [FN203]
*84 Many supporters of hunting and fishing rights, as well as their opponents, candidly concede that the political climate in Tennessee is not such that hunting and fishing rights are under immediate threat. [FN208] State Senator Doug Jackson, a senate sponsor of the hunting and fishing amendment, indicated that the effort to constitutionalize these rights was to safeguard against a political “‘environment that doesn't exist today, but that could exist tomorrow.”’ [FN209] Mike Butler, the executive director of the Tennessee Wildlife Federation, a group who has been actively advocating for passage of the proposed constitutional amendment, conceded that there is “‘[p]robably not’ . . . ‘a clear and present danger (in Tennessee) [,] . . . [b]ut [noted that] if we wait until there is, it will be too late.”’ [FN210] Their efforts are aimed at securing the right to hunt and fish for future generations of Tennesseans by preventing future legislatures from seeking to eliminate Tennesseans' right to hunt, fish, and harvest game. [FN211]
Use of a domestic water supply reservoir for public recreational fishing is not necessarily incompatible with its primary purpose since many domestic water supply reservoirs throughout the state provide public fishing programs without any health hazard to the users of the water. Although there may be *90 domestic water supply reservoirs at which such use is incompatible with public fishing, ample evidence supports the trial court's finding in this case that a properly implemented public recreational fishing program at Whale Rock Reservoir would not interfere with its function as a domestic water supply reservoir. [FN256]
[a]ll state constitutions contain . . . provisions that address policy concerns and other more mundane matters. Instead of lamenting the inclusion of these “non-constitutional” provisions in state constitutions, one needs to recognize that state constitutions differ from the Federal Constitution in their underlying character, and that this difference-not an ineptitude in constitutional design-explains much of what is included in state constitutions. [FN335]
That's why I'm glad the legislature is still hanging around Nashville looking after our interests, although its work product seems rather slim in most tallies. Our schools are still bad, our tax system is a shambles, the economy has tanked, the governor is about to lay off state employees, and bridges are about to fall in rivers.Here's one you may not have heard about: They re about to guarantee our right to hunt and fish. And they're about to do it in the state constitution.. . . .If all goes well, we ll all be able to vote for that sucker by about a 95 percent margin in November 2010, and write it into the constitution.You didn t know there was any question about being able to hunt and fish? That s because you're not as clued in as the legislature. They have heard reports of thousands of PETA parties, right on the square in the light of day in Columbia, Springfield, Sparta, Winchester, Carthage, Pulaski and as near as Eighth and Broadway in Nashville.. . . .Maybe it will all turn out OK. After all, the legislature has protected us before from things we didn t know were sneaking up on us.. . . .They have . . . rushed into our constitution a prohibition against gay marriage, stopping in their tracks the half-dozen couples who were on the verge of making Tennessee into a sinful marriage mill.Maybe next year they will expand our constitutional rights some more, like guaranteeing our heritage of making moonshine and having rooster fights without the sheriff butting in. That rarely happens, but you can t be too careful about our way of life. [FN374]
[o]ver-constitutionalization forces some in the polity to become subordinate to the values and conceptions of the good of others and thus threatens to de-legitimize the Verfassungsstaat [state rule through the constitution]. . . . In the final analysis, over-constitutionalization gives rise to a very similar problem to that produced by strict Kantian autonomy. In the latter case, legitimate law is bound to alienate one from one's own interests as the right must remain above all interest; in the former, one always risks alienation from one's own interests to the extent that the constitution enshrines conflicting interests. In a pluralist polity, this means a sizeable portion of the citizenry will remain significantly alienated from the dictates emanating from the prevailing substantively grounded legal-constitutional regime. [FN382]
[FNa1] . A.B., Georgetown University; J.D., Vanderbilt University Law School; LL.M., Harvard Law School. The author can be reached at jeffreyomarusman @post.harvard.edu. The author dedicates this article to Elizabeth Mary Adamo Usman and Emmett Adamo Usman. He also expresses his thanks to Wyla Posey and Greg Nies for their helpful comments and the staff of Tennessee Law Review for their fine assistance. The opinions expressed herein and any mistakes are exclusively the author's.
[FN1] . H.R.J. Res. 108, 105th Gen. Assem., 2d Sess. (Tenn. 2008). Of the ninety-nine members of the Tennessee House of Representatives, ninety-one members sponsored the resolution, including forty-nine Democrats and forty-two Republicans. Id. The house Democrat sponsors include Representatives Eddie Yokley, John Litz, Michael McDonald, Joe Armstrong, Eddie Bass, Bob Bibb, Stratton Bone, Willie Borchert, Tommie Brown, Frank Buck, Curt Cobb, Kent Coleman, Barbara Cooper, Charles Curtiss, John DeBerry, Lois DeBerry, Joanne Favors, Dennis Ferguson, Henry Fincher, Craig Fitzhugh, George Fraley, Brenda Gilmore, Jim Hackworth, G.A. Hardaway, Bill Harmon, John Hood, Sherry Jones, Ulysses Jones, Mike Kernell, Mark Maddox, Larry Miller, Gary Moore, Gary Odom, Phillip Pinion, Joe Pitts, Mary Pruitt, Randy Rinks, Johnny Shaw, David Shepard, Janis Baird Sontany, John Tidwell, Harry Tindell, Joe Towns Jr., Mike Turner, Nathan Vaughn, Ben West Jr., John Windle, Les Winningham, and then-Speaker Jimmy Naifeh. Id. The house Republican sponsors include Representatives Joe McCord, Curry Todd, Joey Hensley, Dolores R. Gresham (now Senator Gresham), Tom DuBois, Frank Niceley, Curtis Johnson, William Baird, Mike Bell, Harry Brooks, Kevin Brooks, Stacey Campfield, Glen Casada, Jim Cobb, Jim Coley, Chris Crider, Vince Dean, Bill Dunn, Jimmy Eldridge, Richard Floyd, Dale Ford, Michael Harrison, Beth Harwell, David Hawk, Matthew Hill, Phillip Johnson, Ron Lollar, Jon Lundberg, Debra Maggart, Judd Matheny, Jimmy Matlock, Gerald McCormick, Steve McDaniel, Richard Montgomery, Jason Mumpower, Doug Overbey (now Senator Overbey), Dennis Roach, Donna Rowland, Charles Sargent, Eric Swafford, Eric Watson, and Kent Williams (now Speaker Williams). Id.
[FN2] . Id. Of the thirty-three members of the Tennessee Senate, nine senators sponsored the resolution, including six Democrats and three Republicans. Id. The senate Democrat sponsors include Senators Doug Jackson, Joe Haynes, Roy Herron, Tommy Kilby, Steve Roller, and Andy Berke. Id. The senate Republican sponsors include Raymond Finney Jr., Mark Norris, and Mae Beavers. Id.
[FN3] . Id.
[FN4] . Tenn. Const. art. XI, § 3.
[FN5] . Id.
[FN6] . Id.
[FN7] . Id.
[FN8] . Id.
[FN9] . See, e.g., Bob Hodge, Butler Advocating Right to Hunt, Fish, Knoxville News Sentinel, Oct. 19, 2008, at D8.
[FN10] . See infra Parts I, II.A.
[FN11] . See infra Part II.B.1-2.
[FN12] . See infra Part II.B.3.
[FN13] . See infra Part III.
[FN14] . See infra Part IV.
[FN15] . See infra Part V.
[FN16] . See infra Part VI.
[FN17] . See infra Part VI.
[FN18] . For an informative discussion of modern and historic hunting beyond western legal history, see generally Thomas T. Allsen, The Royal Hunt in Eurasian History (2006); Christian Le Noel, On Target: History and Hunting in Central Africa (1999); Wildlife Resources: A Global Account of Economic Use (Harald H. Roth & G nter Merz eds., 1997).
[FN19] . Michael C. Blumm & Lucus Ritchie, The Pioneer Spirit and the Public Trust: The American Rule of Capture and State Ownership of Wildlife, 35 Envtl. L. 673, 677 (2005).
[FN20] . Id.
[FN21] . Id. at 677-78; see also The Institutes of Justian 37 (J.B. Moyle trans., Oxford at the Clarendon Press 5th ed. 1913) (Wild animals, birds, and fish, that is to say all the creatures which the land, the sea, and the sky produce, as soon as they are caught by any one become at once the property of their captor by the law of nations; for this natural reason admits the title of the first occupant to that which previously had no owner.
[FN22] . See Richard A. Pacia & Raymond A. Pacia, Roman Contributions to American Civil Jurisprudence, R.I. B.J., May 2001, at 5, 32.
[FN23] . Blumm & Ritchie, supra note 19, at 678.
[FN24] . James B. Whisker, The Right to Hunt 51 (2d ed. 1999); Michael E. Field, The Evolution of the Wildlife Taking Concept from Its Beginning to Its Culmination in the Endangered Species Act, 21 Hous. L. Rev. 457, 460 (1984). Dividing species of animals into categories of those available for elites to hunt and those available for peasants is a practice that has existed in societies since the shift from hunting and gathering to the cultivation of land. Emma Griffin, Blood Sport: Hunting in Britain Since 1066, at 6 (2007). In the Old Kingdom of Ancient Egypt, Pharaohs and other “dignitaries hunted large animals for recreation: the peasants hunted smaller animals - geese, ducks and quail - to supplement their meagre diets.” Id.
[FN25] . See generally Hugh M. Thomas, The Norman Conquest: England After William the Conqueror (2008); Andrew Simmonds, Amah and Eved and the Origin of Legal Rights, 46 S.D. L. Rev. 516, 577-81 (2001).
[FN26] . 2 William Blackstone, Commentaries *415; Griffin, supra note 24, at 16; Andrea McDowell, Legal Fictions in Pierson v. Post, 105 Mich. L. Rev. 735, 745 (2006) (citing Charles Donahue, Jr., Animalia Ferae Naturae: Rome, Bologna, Leyden, Oxford and Queen's County, N.Y., in Studies in Roman Law in Memory of A. Arthur Schiller 39, 61 (Roger S. Bagnall & William V. Harris eds., 1986)).
[FN27] . McDowell, supra note 26, at 745-46; see also Field, supra note 24, at 461; James L. Huffman, Speaking of Inconvenient Truths-A History of the Public Trust Doctrine, 18 Duke Envtl. L. & Pol'y F. 1, 81 (2007) (quoting Bracton, 2 De Legibus et Consuetudinibus Angliae 41 (1256)).
[FN28] . Griffin, supra note 24, at 19.
[FN29] . See generally Griffin, supra note 24, at 15-24.
[FN30] . McDowell, supra note 26, at 745; see also 1 Halsbury's Laws of England, Animals 529-616 (2d ed. 1931)) (“English law transformed to allow game hunting only upon the crown's permission, ratione privlegi.”); Dale D. Goble, Three Cases / Four Tales: Commons, Capture, the Public Trust, and Property in Land, 35 Envtl. L. 807, 822-30 (2005); J. M. Kelley, Implications of a Montana Voter Initiative that Reduces Chronic Wasting Disease Risk, Bans Canned Shooting, and Protects a Public Trust, 6 Great Plains Nat. Resources J. 89, 91-92 n.21 (2001) (citing 15 Halsbury's Laws of England, Game 406-65 (2d ed. 1931)).
[FN31] . Constable's Case, (1601) 77 Eng. Rep. 218, 223 (K.B.).
[FN32] . 2 William Blackstone, Commentaries *417. See generally Huffman, supra note 28, at 81-82.
[FN33] . P. B. Munsche, Gentlemen and Poachers: The English Game Laws 1671-1831, at 9 (1981).
[FN34] . Id.
[FN35] . Whisker, supra note 24, at 44.
[FN36] . Field, supra note 24, at 461.
[FN37] . Roger B. Manning, Forest Laws, in Historical Dictionary of Stuart England, 1603-1689, at 200 (Ronald H. Fritze et al. eds., 1996).
[FN38] . Whisker, supra note 24, at 55.
[FN39] . Id.
[FN40] . Id.
[FN41] . Griffin, supra note 24, at 20 (quoting William of Newburgh, The History of William of Newburgh 408 (Joseph Stevenson trans, 1996)).
[FN42] . Field, supra note 24, at 461. See generally J. C. Holt, Magna Carta (1992); William Sharp McKechnie, Magna Carta: A Commentary on the Great Charter of King John (1914).
[FN43] . Manning, supra note 37, at 200; see also Griffin, supra note 24, at 34-48, 62; Munsche, supra note 33, at 9. At least two provisions of Magna Carta are directly related to the barons' concerns regarding their hunting rights. Chapter 47 provides that
“[a]ll forests that have been made such in our time shall forthwith be disafforested; and a similar course shall be followed with regard to river-banks that have been placed ‘in defence’ by us in our time.” Magna Carta ch. 47, reprinted in McKechnie, supra note 42, at 435. Chapter 48 states that: [a]ll evil customs connected with forests and warrens, foresters and warreners, sheriffs and their officers, river-banks and their wardens, shall immediately be inquired into in each county by twelve sworn knights of the same county chosen by the honest men of the same county, and shall, within forty days of the said inquest, be utterly abolished, so as never to be restored, provided always that we previously have intimation thereof, or our justiciar, if we should not be in England.
[FN44] . Manning, supra note 37, at 200.
[FN45] . Griffin, supra note 24, at 62.
[FN46] . Id.; McDowell, supra note 26, at 745-46.
[FN47] . McDowell, supra note 26, at 745-46.
[FN48] . Griffin, supra note 24, at 62.
[FN49] . Munsche, supra note 33, at 9-10.
[FN50] . Griffin, supra note 24, at 19.
[FN51] . Munsche, supra note 33, at 10.
[FN52] . Griffin, supra note 24, at 19-20, 46, 62.
[FN53] . Hope M. Babcock, Should Lucas v. South Carolina Coastal Council Protect Where the Wild Things Are? Of Beavers, Bob-O-Links, and Other Things that Go Bump in the Night, 85 Iowa L. Rev. 849, 881 n.133 (2000); Manning, supra note 37, at 200.
[FN54] . See Munsche, supra note 33, at 8; Nicholas A. Robinson, The ‘Ascent of Man’: Legal Systems and the Discovery of an Environmental Ethic, 15 Pace Envtl. L. Rev. 497, 500 (1998).
[FN55] . An English Civil War that began during the reign of Charles I resulted in the execution of the King and the empowerment of Oliver Cromwell, which caused further societal distress and upheaval that finally calmed when Charles II ascended to the throne in the Restoration of 1660. Scott D. Gerber, The Court, the Constitution, and the History of Ideas, 61 Vand. L. Rev. 1067, 1106-09 (2008); A.E. Dick Howard, The Bridge at Jamestown: The Virginia Charter of 1606 and Constitutionalism in the Modern World, 42 U. Rich. L. Rev. 9, 19-21 (2007).
[FN56] . Munsche, supra note 33, at 23-24.
[FN57] . Id. at 9-10.
[FN58] . Id. at 16.
[FN59] . Id. at 12-19.
[FN60] . Griffin, supra note 24, at 62; McDowell, supra note 26, at 745-46.
[FN61] . Griffin, supra note 24, at 110-11.
[FN62] . Munsche, supra note 33, at 13; see also 1 Halsbury's Laws of England, Animals 529-616 (2d ed. 1931)); Kelley, supra note 30, at 92 n.21 (citing 15 Halsbury's Laws of England, Game 406-65 (2d ed. 1931).
[FN63] . Munsche, supra note 33, at 16.
[FN64] . Id. at 13 (“The qualified sportsman . . . was, of course, still subject to the law of trespass, but by another law passed in 1671 plaintiffs in trespass cases could not be awarded full costs unless the damages were found to exceed 40s. Since the latter was unlikely to occur in a case of simple trespass by a sportsman, suits against qualified gentlemen were effectively discouraged.”).
[FN65] . Griffin, supra note 24, at 111.
[FN66] . The term “nimrod” has not always had the negative connotation that it has today:
[FN67] . 2 William Blackstone, Commentaries *416.
[FN68] . Munsche, supra note 33, at 16-19.
[FN69] . Id.
[FN70] . Adrian Harvey, The Beginnings of a Commercial Sporting Culture in Britain, 1793-1850, at 67 (2004); Munsche, supra note 33, at 22-23.
[FN71] . Robert F. Kennedy, Jr., Falconry: Legal Ownership and Sale of Captive-Bred Raptors, 4 Pace Envtl. L. Rev. 349, 363 (1987).
[FN72] . Munsche, supra note 33, at 20-27.
[FN73] . Field, supra note 24, at 461.
[FN74] . 4 William Blackstone, Commentaries *175.
[FN75] . Harvey, supra note 70, at 67; Lynn Hunt et al., The Making of the West: Peoples and Cultures a Concise History 622 (2006); The Jurist, Apr. 10, 1847, at 1-2; The Game Laws, Westminster Review, reprinted in The Spirit of the Times 426-27 (Thomas Dolby 1825). See generally Edward Christian, A Treatise on the Game Laws (1817). One American court described the view of English game laws as follows:
[The game laws] have long been considered, by many of their soundest jurists, as an anomaly in their admirable system of municipal jurisprudence. Mr. Justice Willes says, “nothing can be more oppressive than the present system of the game laws;” and Blackstone, speaking of the same subject, says, “yet, however defensible these provisions in general may be, on the footing of reason, or justice, or civil policy, we must notwithstanding acknowledge, that, in their present shape, they owe their immediate origin to slavery.”
[FN76] . F. David Roberts, The Social Conscience of the Early Victorians 52 (2002).
[FN77] . See Peter L. Atkinson, Making Game: An Essay on Hunting, Familiar Things, and the Strangeness of Being Who One Is 61-62 (2009); Stuart Carroll, Blood and Violence in Early Modern France 62-65 (2006); J. P. Cooper, Land, Men and Beliefs: Studies in Early-Modern History 126 (1983); John P. McKay et al., A History of Western Society Since 1300, at 664 (9th ed. 2007).
[FN78] . Cooper, supra note 77, at 126.
[FN79] . David B. Kopel, The Catholic Second Amendment, 29 Hamline L. Rev. 520, 562-63 (2006).
[FN80] . Annabel S. Brett, Liberty, Right and Nature: Individual Rights in Later Scholastic Thought 132 (2003) (quoting Francisco de Vitoria, Commentarios a la Secundae de Santo Tomas 64.1.5 (V. Beltran de Heredia ed., 1934)). Such a position was consistent with the Catholic Church's by then longstanding view that “by divine providence [animals] are intended for man's use according to the order of nature. Hence it is not wrong for man to make use of them . . . .” 3 Saint Thomas Aquinas, Summa Contra Gentiles, reprinted in 2 Basic Writings of Saint Thomas Aquinas 222 (Anton C. Pegis ed., 1945). But while the killing of game by commoners to provide for their own meager diet did not raise moral concerns, leading lights of the Catholic Church were not so invariably fond of the sporting aspects of hunting. Sir Thomas More, Utopia 89-90 (trans. Ralph Robinson 1997).
[FN81] . Atkinson, supra note 77, at 62; see also Jean-Beno t Nadeau & Julie Barlow, Sixty Million Frenchmen Can't be Wrong: Why We Love France But Not the French 27 (2003).
[FN82] . Frank Maloy Anderson, The Constitutions and Other Select Documents Illustrative of the History of France: 1789-1901, at 11 (1904); see also George Rude, Revolutionary Europe 1783-1815, at 85 (2d ed., Blackwell Publishers 2000) (1964) (noting that in 1789 the National Assembly viewed hunting and fishing rights as among the inherent rights of the people that had been wrongfully usurped by the aristocracy).
[FN83] . See Contemporary Civilization Staff of Columbia Coll., Columbia Univ., Introduction to Contemporary Civilization in the West 544 (3d ed. 1961).
[FN84] . The Fundamental Rights of the German People art. IX, § 39 (repealed 1851).
[FN85] . See Kelley, supra note 30, at 91-92; see also Thomas A. Campbell, The Public Trust, What s it Worth?, 34 Nat. Resources J. 73, 74 (1994); Joseph L. Sax, Property Rights and the Economy of Nature: Understanding Lucas v. South Carolina Coastal Council, 45 Stan. L. Rev. 1433, 1442 (1993); Anna R. C. Caspersen, Comment, The Public Trust Doctrine and the Impossibility of Takings by Wildlife, 23 B.C. Envtl. Aff. L. Rev. 357, 364-65 (1996). Historically, an abundance of wildlife has profoundly impacted the law on ownership and seizure of wildlife. See, e.g., Hugo Grotius, Mare Liberum 57 (Ralph Van Deman trans., 1916).
[I]n the case of the sea the same primitive right of nations regarding fishing and navigation which existed in the earliest times, still today exists undiminished and always will. . . . [E]very one admits that if a great many persons hunt on the land or fish in a river, the forest is easily exhausted of wild animals and the river of fish, but such a contingency is impossible in the case of the sea.
[FN86] . Goble, supra note 30, at 830 n.110.
[FN87] . Kennedy, supra note 71, at 363.
[FN88] . Thomas A. Lund, Early American Wildlife Law, 51 N.Y.U. L. Rev. 703, 705 (1976).
[FN89] . Atkinson, supra note 77, at 62; Blumm & Ritchie, supra note 19, at 686-90.
[FN90] . McConico v. Singleton, 9 S.C.L. (2 Mill) 244, 244-46 (1818).
[FN91] . State v. Campbell, T.U.P.C. 166, 168 (Ga. 1808).
[FN92] . Kennedy, supra note 71, at 363-64.
[FN93] . Pennslyania and the Federal Constitution 1787-1788, at 422, 462 (John Bach McMaster & Frederick D. Stone eds., 1888); Blumm & Ritchie, supra note 19, at 689 n.101.
[FN94] . See, e.g., Thomas Y. Davies, Correcting Search-and-Seizure History: Now-Forgotten Common-Law Warrantless Arrest Standards and the Original Understanding of Due Process of Law, 77 Miss. L.J. 1, 127-36 (2007); John F. Stinneford, The Original Meaning of Unusual : The Eighth Amendment as a Bar to Cruel Innovation, 102 Nw. U. L. Rev. 1739, 1807 (2008); see also Paul Finkelman, A Well Regulated Militia : The Second Amendment in Historical Perspective, 76 Chi.-Kent L. Rev. 195, 198 (2000).
As they met with defeat in one state after another, the Antifederalists fell back to their secondary position of demanding amendments to alter the nature of the government. Thus, in a number of the states, the defeated Antifederalists proposed amendments that they hoped would be added after ratification. . . . The Antifederalists wanted the state ratifying conventions to endorse their proposed amendments.
[FN95] . Davies, supra note 94, at 131-32.
[FN96] . Id.
[FN97] . Paul Finkelman, It Really Was About a Well Regulated Militia, 59 Syracuse L. Rev. 267, 274 (2008).
[FN98] . See Finkelman, supra note 94, at 206-07.
[FN99] . Pennsylvania and the Federal Constitution 1787-1788, supra note 93, at 422, 462; Finkelman, supra note 94, at 207.
[FN100] . Pennsylvania and the Federal Constitution 1787-1788, supra note 93, at 422, 462.
[FN101] . Finkelman, supra note 94, at 206-07.
[FN102] . Id.
[FN103] . Warren E. Burger, The Right to Bear Arms, Parade Magazine, Jan. 14, 1990, at 4.
[FN104] . Id.
[FN105] . David B. Kopel, The Supreme Court s Thirty-Five Other Gun Cases: What the Supreme Court Has Said About the Second Amendment, 18 St. Louis U. Pub. L. Rev. 99, 129 n.88 (1999).
[FN106] . Id.
[FN107] . See Baldwin v. Fish and Game Comm'n of Mont., 436 U.S. 371, 388 (1978); Patsone v. Penn., 232 U.S. 138, 143 (1914).
[FN108] . See Landsen v. Hart, 168 F.2d 409, 412 (7th Cir. 1948); Bailey v. Holland, 126 F.2d 317 (4th Cir. 1942); Terk v. Ruch, 655 F. Supp. 205, 209-10 (D. Colo. 1987); DeMasters v. Mont., 656 F. Supp. 21, 24 (D. Mont. 1986).
[FN109] . See Baldwin, 436 U.S. at 388-91; Schutz v. Thorne, 415 F.3d 1128, 1137 (10th Cir. 2005).
[FN110] . See Baldwin, 436 U.S. at 388; McCready v. Virginia, 94 U.S. 391, 395-96 (1876); 16B Am. Jur. 2d Constitutional Law § 775 (1998); 35A Am. Jur. 2d Fish, Game, and Wildlife Conservation § 8 (2001).
[FN111] . Commerce Clause challenges sometimes have proven successful. See generally Jay M. Zitter, Annotation, Validity, Construction, and Application of State Statutes Prohibiting, Limiting, or Regulating Fishing or Hunting in State by Nonresidents, 31 A.L.R. 6th 523 (2008). At present, however, Congress appears to have statutorily foreclosed the possibility of bringing suit under the Commerce Clause based upon discrimination against out-of-state residents. As part of the Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief, 2005, Congress approved the Reaffirmation of State Regulation of Resident and Nonresident Hunting and Fishing Act of 2005. In this Act, Congress declared the following:
(1) IN GENERAL.-It is the policy of Congress that it is in the public interest for each State to continue to regulate the taking for any purpose of fish and wildlife within its boundaries, including by means of laws or regulations that differentiate between residents and nonresidents of such State with respect to the availability of licenses or permits for taking of particular species of fish or wildlife, the kind and numbers of fish and wildlife that may be taken, or the fees charged in connection with issuance of licenses or permits for hunting or fishing.
[FN112] . See Pa. Game Comm'n v. Marich, 666 A.2d 253, 257 (Pa. 1995).
[FN113] . Bishop v. United States, 126 F. Supp. 449, 451 (Ct. Cl. 1954).
[FN114] . See 2 Christopher G. Tiedeman, A Treatise on State and Federal Control of Persons and Property in the United States § 151 (1900).
[FN115] . Magner v. People, 97 Ill. 320, 333-34 (1881). This view is and has been extremely widespread among state courts. For example, the California Supreme Court has also stated:
Nor do we think that in giving the act this effect it contravenes the constitution of this state as being in excess of the police power of the state. The wild game within a state belongs to the people in their collective, sovereign capacity. It is not the subject of private ownership, except in so far as the people may elect to make it so; and they may, if they see fit, absolutely prohibit the taking of it, or any traffic or commerce in it, if deemed necessary for its protection or preservation, or the public good.
[FN116] . David S. Rudstein, A Brief History of the Fifth Amendment Guarantee Against Double Jeopardy, 14 Wm. & Mary Bill Rts. J. 193, 222 (2005).
[FN117] . 1 Bernard Schwartz, The Bill of Rights: A Documentary History 69 (1971).
[FN118] . The Massachusetts Body of Liberties § 16 (1641), reprinted in American Historical Documents 1000-1904, at 73 (Charles W. Eliot ed., 1910).
[FN119] . Id.
[FN120] . Charter of Connecticut (1662), available at http:// avalon.law.yale.edu/17th_century/ct03.asp.
[FN121] . Charter of Rhode Island and Providence Plantations (1663), available at http://www.sec.state.ri.us/pubinfo/rigomstatic/richarter.html.
[FN122] . Id.
[FN123] . Cultures and Identities in Colonial British America 107 (Robert Olwell & Alan Tully eds., 2006).
[FN124] . Id. at 107-08.
[FN125] . Id. at 108.
[FN126] . The Frame of the Government of the Province of Pennsylvania and, Territories Thereunto Annexed, in America § 22 (1683), available at http:// avalon.law.yale.edu/17th_century/pa05.asp.
[FN127] . The Frame of Government of the Province of Pennsylvania, and the Territories Thereunto Belonging (1696), available at http:// avalon.law.yale.edu/17th_century/pa06.asp.
[FN128] . See Thomas Y. Davies, What Did the Framers Know, and When Did They Know It? Fictional Originalism in Crawford v. Washington, 71 Brook. L. Rev. 105, 154 n.157 (2005).
[FN129] . See G. Alan Tarr, Understanding State Constitutions 60 (1998) [hereinafter Tarr, Understanding].
[FN130] . 8 George Bancroft, History of the United States, From the Discovery of the American Continent 137 (6th ed. 1868) (noting that this specific language was addressed to encourage the formation of state constitutions in New Hampshire and South Carolina).
[FN131] . See generally Tarr, Understanding, supra note 129, at 60-93.
[FN132] . See S.C. Const. of 1776 pmbl.
[FN133] . See Pa. Const. of 1776, § 43; Vt. Const. of 1777 ch. II, § 39.
[FN134] . S.C. Const. of 1776 pmbl; see also Tarr, Understanding, supra note 129, at 67.
[FN135] . S.C. Const. of 1776 pmbl.
[FN136] . Vt. Const. ch. II, § 67. The above quoted language is the current form of Vermont s state constitutional protection of hunting and fishing rights. The current language is almost identical to the original language of chapter II, section XXXIX of the Vermont Constitution of 1777.
[FN137] . Pa. Const. of 1776, § 43.
[FN138] . New England Trout & Salmon Club v. Mather, 35 A. 323, 328 (Vt. 1896) (Thompson, J., dissenting); see also Cabot v. Thomas, 514 A.2d 1034, 1037 (Vt. 1986).
[FN139] . New England Trout & Salmon Club, 35 A. at 328 (Thompson, J., dissenting).
[FN140] . Id.
[FN141] . M. Goldsmith & Charles Barrett, Biennial Report of the Commissioners of Fisheries, in J. H.R., Biennial Sess., 1878, app. C at 460-61 (Vt. 1879).
[FN142] . Id. at 461.
[FN143] . Id.
[FN144] . See Elliott v. State Fish & Game Comm'n, 84 A.2d 588, 592-93 (Vt. 1951).
[FN145] . New England Trout & Salmon Club, 35 A. at 330 (Thompson, J., dissenting).
[FN146] . See Cultures and Identities in Colonial British America, supra note 123, at 107-08.
[FN147] . Id. at 108.
[FN148] . See generally Edward Dumbauld, An Unusual Constitutional Claim, 1 Am. J. Legal Hist. 229 (1957).
[FN149] . Robert F. Williams, Old Constitutions and New Issues: National Lessons from Vermont s State Constitutional Case on Marriage of Same-Sex Couples, 43 B.C. L. Rev. 73, 81 (2001).
[FN150] . See generally John Koritansky, Thomas Paine: The American Radical, in History of American Political Thought 63-79 (Bryan-Paul Frost & Jeffrey Sikkenga eds., 2003).
[FN151] . 2 The Complete Writings of Thomas Paine 285 (Philip S. Foner ed., 1945) (emphasis in original).
[FN152] . See Cultures and Identities in Colonial British America, supra note 123, at 110-11.
[FN153] . Resolutions Passed at a Meeting in the State-House Yard (Oct. 22, 1776), available at http://www.stanklos.net/? act=para&pid=14956&psname=CORRESPONDENCE.%20PROCEEDINGS%2C%C20%C26C.%201776.
[FN154] . Id.
[FN155] . Cultures and Identities in Colonial British America, supra note 123, at 110-11.
[FN156] . R.I. Const. art. 1, § 17.
[FN157] . Cal. Const. art. 1, § 25.
[FN158] . Ala. Const. art. I, § 36.02.
[FN159] . Minn. Const. art. XIII, § 12.
[FN160] . N.D. Const. art. XI, § 27.
[FN161] . Va. Const. art. XI, § 4.
[FN162] . Wis. Const. art. I, § 26.
[FN163] . La. Const. art. I, § 27.
[FN164] . Mont. Const. art. IX, § 7.
[FN165] . Ga. Const. art. I, § I, XXVIII.
[FN166] . Okla. Const. art. II, § 36. Additionally, while not constitutionalizing the right to hunt or fish, the courts of several other states have concluded that the right to hunt wild animals on one's own land constitutes a property right under certain circumstances, the deprivation of which is permitted but which requires compensation. See Shellnut v. Ark. State Game & Fish Comm'n, 258 S.W.2d 570, 573-74 (Ark. 1953); Alford v. Finch, 155 So.2d 790, 793 (Fla. 1963); Allen v. McClellan, 405 P.2d 405, 407-08 (N.M. 1965).
[FN167] . See Ala. Const. art. I, § 36.02(a); Va. Const. art. XI, § 4.
[FN168] . Ala. Const. art. I, § 36.02(b).
[FN169] . Ala. Const. art. I, § 36.02(a).
[FN170] . Va. Const. art. XI, § 4.
[FN171] . Ga. Const. art. I, § I, XXVIII; Minn. Const. art. XIII, § 12; N.D. Const. art. XI, § 27.
[FN172] . Ga. Const. art. I, § I, XXVIII.
[FN173] . Minn. Const. art. XIII, § 12.
[FN174] . N.D. Const. art. XI, § 27.
[FN175] . See Okla. Const. art. II, § 36; Wis. Const. art. I, § 26.
[FN176] . See Okla. Const. art. II, § 36.
[FN177] . Wis. Const. art. I, § 26.
[FN178] . Okla. Const. art. II, § 36.
[FN179] . See La. Const. art. I, § 27; Mont. Const. art. IX, § 7.
[FN180] . La. Const. art. I, § 27. Article IX, section 1 of the Louisiana Constitution, which is referenced by article I, section 27, states that “[t]he natural resources of the state, including air and water, and the healthful, scenic, historic, and esthetic quality of the environment shall be protected, conserved, and replenished insofar as possible and consistent with the health, safety, and welfare of the people. The legislature shall enact laws to implement this policy.” La. Const. art. IX, § 1.
[FN181] . Mont. Const. art. IX, § 7.
[FN182] . See Cal. Const. art. 1, § 25; R.I. Const. art. 1,§ 17.
[FN183] . Cal. Const. art. 1, § 25.
[FN184] . R.I. Const. art. 1, § 17.
[FN185] . See Del. Const. art. I, § 20; Neb. Const. art. I, § 1; Nev. Const. art. 1, § 11, cl. 1; N.M. Const. art. II, § 6; N.D. Const. art. I, § 1; W.V. Const. art. III, § 22; Wis. Const. art. I, § 25. An eighth state could be added in 2010. In November 2010, the voters of Kansas will have before them a proposed state constitutional amendment that would expressly guarantee gun rights as an individual personal right. In addition, the proposed language would specifically reference “lawful hunting” as one of the purposes of this right. Posting of Eugene Volokh to The Volokh Conspiracy, http://www.volokh.com/posts/1238042014.shtml (Mar. 26, 2009 12:33). For a listing of the various past and present gun rights provisions under state constitutions, see Eugene Volokh, State Constitutional Rights to Keep and Bear Arms, 11 Tex. Rev. L. & Pol. 191 (2006).
[FN186] . See N.D. Const. art. XI, § 27; Wis. Const. art. I, § 26.
[FN187] . N.D. Const. art. I, § 1.
[FN188] . Wis. Const. art. I, § 25.
[FN189] . Del. Const. art. I, § 20.
[FN190] . Neb. Const. art. I, § 1.
[FN191] . Nev. Const. art. 1, § 11, cl. 1.
[FN192] . N.M. Const. art. II,§ 6.
[FN193] . W.V. Const. art. III, § 22. The West Virginia Supreme Court has indicated that this provision protects a person's right to keep and bear arms for lawful hunting but does not appear to view the legislature as being limited, under this provision, as to what it may render unlawful with regard to hunting. See Hartley Hill Hunt Club v. County Comm n of Ritchie County, 647 S.E.2d 818, 824-25 (W. Va. 2007).
[FN194] . Dena M. Jones & Sheila Hughes Rodriguez, Restricting the Use of Animal Traps in the United States: An Overview of Laws and Strategy, 9 Animal L. 135, 145 (2003).
[FN195] . Id.
[FN196] . Id.
[FN197] . Id.
[FN198] . People for the Ethical Treatment of Animals, Iowa Governor Vetoes Dove-Hunting Bill, http://www.peta.org/about/victories_date.asp? page=1&selected_year=2001 (last visited Jan. 15, 2010).
[FN199] . Bruce A. Scruton, Gov. Corzine: Black Bear Population Not a Problem, New Jersey Herald, Sept. 27, 2008, at 154.
[FN200] . Humane Society of the United States, City and State Trapping Bans, http://www.hsus.org/furfree/cruel_reality/trapping/city_and_state_trapping_ bans.html (last visited Jan. 15, 2010).
[FN201] . See, e.g., Jones & Rodriguez, supra note 194, at 146 (“Groups interested in preserving trapping have responded to the success of citizen initiatives by sponsoring legislation that will guarantee the right to trap and will limit the use of the initiative process for wildlife management issues.”); Aaron Lake, 1998 Legislative Review, 5 Animal L. 89, 101 (1999) (“The Minnesota Outdoor Heritage Foundation, an umbrella group made up of most of the state's hunting and fishing organizations, was the driving force behind the amendment. The group claims the amendment was necessary to fend off attacks on hunting, fishing, and trapping made by animal rights groups.”); Lisa Weisberg, Legislative Proposals Protecting Animals in Entertainment: At The Crossroads, 16 Pace Envtl. L. Rev. 125, 129 (1998) (“[M]any state legislatures, perhaps feeling threatened by the recent string of successful state ballot initiatives that outlaw certain methods of hunting and trapping, have proposed amendments to their state constitutions in order to guarantee its citizens the right to hunt.”).
[FN202] . See, e.g., Emilie Clermont, 2003 Legislative Review, 10 Animal L. 363, 381 (2004).
[FN203] . Ed Godfrey, Protecting a Proud Tradition, The Oklahoman, Oct. 19, 2008, at 18B. Inclusion of this derisive reference is meant to reflect the underlying feelings and beliefs that are giving rise to the move to constitutionalize the right to hunt and fish and is not intended to reflect the views of the author. There certainly are effective advocates writing in opposition to hunting and fishing whose arguments warrant consideration and discussion. See, e.g., Tom Regan, The Case for Animal Rights (2004); Matthew Scully, Dominion: The Power of Man, the Suffering of Animals, and the Call to Mercy (2002); Peter Singer, Animal Liberation: A New Ethics for our Treatment of Animals (1975).
[FN204] . Bob Hodge, Some States Are Making It Tough on Outdoorsmen, Knoxville News Sentinel, Nov. 19, 2006, at D8 [hereinafter Hodge, Some States]; Bob Hodge, Watch Step on Outdoors Measure, Knoxville News Sentinel, Apr. 23, 2006, at D12 [hereinafter Hodge, Watch Step]; Larry Woody, Amendment Splits Wildlife Groups, The Tennessean, Jan. 14, 2007, at 2C.
[FN205] . Bob Hodge, Butler Advocating Right to Hunt, Fish, Knoxville News Sentinel, Oct. 19, 2008, at D8 [hereinafter Hodge, Butler Advocating]; Bob Hodge, State Legislature to Consider Right to Hunt, Knoxville News Sentinel, Dec. 2, 2007, at D8 [hereinafter Hodge, State Legislature].
[FN206] . Hodge, Butler Advocating, supra note 205, at D8; Michael A. Weber, Sportsmen Feel Like Targets, The Tennessean, Jan. 17, 2007, at 1B.
[FN207] . Matt Gouras, Hunters Fight to Protect Rights-Propose Amendment to Counter Activists, The Commercial Appeal, Feb. 20, 2005, at B6; Hodge, Some States, supra note 204, at D8; Richard Simms, Looking Out for the Laws: TWRA Monitors Legislature's Hunting, Fishing Proposals, Chattanooga Times Free Press, May 1, 2005, at C9.
[FN208] . See Sean McCombs, Right-to-Hunt Crusade Begins, Chattanooga Times Free Press, Mar. 3, 2005, at B2.
[FN209] . Id. (quoting Sen. Doug Jackson, Tenn. S.)
[FN210] . Simms, supra note 207, at C9 (quoting Mike Butler, Executive Director, Tennessee Wildlife Foundation).
[FN211] . Hodge, State Legislature, supra note 205, at D8; Simms, supra note 207, at C9.
[FN212] . See McCombs, supra note 208, at B2.
[FN213] . Gouras, supra note 207, at B6.
[FN214] . McCombs, supra note 208, at B2; Mike O Neal, Hunting Decline Hits Revenue, Chattanooga Times Free Press, Jan. 2, 2009, at A1.
[FN215] . Gouras, supra note 207, at B6.
[FN216] . O'Neal, supra note 214, at A9.
[FN217] . Gouras, supra note 207, at B6; Weber, supra note 206, at 3B.
[FN218] . Bob Hodge, State Favors Hunter-Fisherman Rights, Knoxville News Sentinel, May 13, 2007, at D12 (quoting Mike Butler, Executive Director, Tennessee Wildlife Foundation).
[FN219] . However, some analysts suggest that the various constitutional hunting rights provisions secure the right to trap from contrary regulatory efforts. See Jones & Rodriguez, supra note 194, at 146; see also Clermont, supra note 202, at 381; Lake, supra note 201, at 101.
[FN220] . Orion Sporting Group, LLC v. Bd. of Supervisors of Nelson County, Nos. 04-0019, 04-0020, 2005 WL 3579067, at *1, *4 (Va. Cir. Ct. June 29, 2005).
[FN221] . See, e.g., Ala. Dog Hunters Ass'n v. State, 893 So.2d 1224, 1227 (Ala. Civ. App. 2004); Cal. Gillnetters Ass'n. v. Dep't of Fish & Game, 46 Cal. Rptr. 2d 338, 343 (Cal. Ct. App. 1995) (concluding that the constitutional right to fish is a qualified right that is subject to rational basis review); Wis. Citizens Concerned for Cranes and Doves v. Wis. Dep't of Natural Res., 667 N.W.2d 612, 629-30 (Wis. 2004); Jason J. Czarnezki, Environmentalism and the Wisconsin Constitution, 90 Marq. L. Rev. 465, 471 (2007).
[FN222] . See, e.g., Ex parte Parra, 141 P. 393, 395 (Cal. Dist. Ct. App. 1914).
[FN223] . See, e.g., Zanotti v. Bolles, 67 A. 818, 818 (Vt. 1907); State v. Niles, 62 A. 795, 796 (Vt. 1906).
[FN224] . See, e.g., Niles, 62 A. at 796.
[FN225] . Southview Assocs. v. Bongartz, 980 F.2d 84, 91 n.2 (2d Cir. 1992) (citing Vt. Dep't of Fish and Wildlife, Deer Management Plan for the State of Vermont, 1990-95, at 2-3 (1990)).
[FN226] . See State v. San Luis Obispo Sportsman's Ass'n, 584 P.2d 1088, 1095-96 (Cal. 1978); State v. Cozzens, 2 R.I. 561, 563 (1850).
[FN227] . See, e.g., Elliott v. State Fish & Game Comm'n, 84 A.2d 588, 592-93 (Vt. 1951).
[FN228] . See, e.g., Wis. Citizens Concerned for Cranes and Doves, 677 N.W.2d at 630. Although the Supremacy Clause certainly imposes federal law limitations on state hunting and fishing rights, state law limitations appear to be linked to the state's constitutional duty to preserve wildlife so as to ensure the availability of hunting prospectively.
[FN229] . See, e.g., Czarnezki, supra note 221, at 471.
[FN230] . Mertins v. Comm'r of Natural Res., 755 N.W.2d 329, 336-37 (Minn. Ct. App. 2008).
[FN231] . Robert A. Creamer, Note, History Is Not Enough: Using Contemporary Justifications for the Right to Keep and Bear Arms in Interpreting the Second Amendment, 45 B.C. L. Rev. 905, 920, 925 (2004).
[FN232] . Nicholas J. Johnson, A Second Amendment Moment: The Constitutional Politics of Gun Control, 71 Brook. L. Rev. 715, 746 (2005).
[FN233] . Creamer, supra note 231, at 925.
[FN234] . If the scope of permissible searches and seizures has changed as a result of the constitutionalized duty to preserve fishing and hunting for future generations-as opposed to the state's general interest in regulating fishing and hunting absent such a provision-the change would appear to be extremely minor given the existing expansive, though not unlimited, authority of the State to conduct searches related to such activities. See generally 5 Wayne R. LaFave, Search & Seizure: A Treatise on the Fourth Amendment § 10.8(e) (4th ed. 2004); Donald C. Douglas, Jr., Comment, A Comment on Louisiana Wildlife Agents and Probable Cause: Are Random Game Checks Constitutional?, 53 La. L. Rev. 525 (1992).
[FN235] . State v. Colosimo, 669 N.W.2d 1, 6 (Minn. 2003). See generally Scott Witty, Note, It's a Keeper: Preserving Minnesota's Recreational Fishing by Allowing Effective Regulatory Enforcement, 26 Hamline J. Pub. L. & Pol y 151 (2004).
[FN236] . Colosimo, 669 N.W.2d at 6.
[FN237] . Id. at 7.
[FN238] . Id. at 6.
[FN239] . But see Payne v. Sheets, 55 A. 656, 660 (Vt. 1903) (noting that Vermont's common law has been somewhat modified by Vermont's state constitutional hunting and fishing rights provision).
[FN240] . La. Const. art. I, § 27.
[FN241] . Parm v. Shumate, 513 F.3d 135, 145 (5th Cir. 2007).
[FN242] . Czarnezk, supra note 221, at 471 (citing Wis. Citizens Concerned for Cranes and Doves v. Wis. Dep't of Natural Res., 677 N.W.2d 612 (Wis. 2004); Diana Shooting Club v. Husting, 145 N.W. 816, 820 (Wis. 1914); Willow River Club v. Wade, 76 N.W. 273 (Wis. 1898)).
[FN243] . Philip A. Talmadge, The Myth of Property Absolutism and Modern Government: The Interaction of Police Power and Property Rights, 75 Wash. L. Rev. 857, 867 n.26 (2000) (quoting Vt. Const. ch. II, § 67).
[FN244] . Vt. Const. ch. II, § 67; see also Cabot v. Thomas, 514 A.2d 1034, 1038 (Vt. 1986) (“By attaching ‘boatable waters' and ‘lands not enclosed’ limitations on the respective rights of fishing and hunting, the Vermont Constitution has designated those points beyond which private property becomes inviolate for fishing and hunting purposes-nonboatability for the former and enclosure for the latter.”).
[FN245] . Id. at 1039.
[FN246] . Jackvony v. Powel, 21 A.2d 554, 558 (R.I. 1941). See also State ex rel. Town of Westerly v. Bradley, 877 A.2d 601, 607 (R.I. 2005) (“The state's plenary authority over tidal lands is nevertheless restricted by article 1, section 17, which preserves ‘all the rights of fishery . . .’ to the state's inhabitants, ‘to which they have been heretofore entitled under the charter and usages of this state, including but not limited to fishing from the shore . . . .”’); Town of Warren v. Thornton-Whitehouse, 740 A.2d 1255, 1259-60 (R.I. 1999) (“The state's authority over [tidal] land is limited by article 1, section 17, of the Rhode Island Constitution, which provides that the people shall continue to enjoy ‘the privileges of the shore,’ including the right to fish, to swim, and to pass along the shore.”).
[FN247] . Hunters, Anglers and Trappers Ass'n of Vt. v. Winooski Valley Park Dist., 913 A.2d 391, 393-94, 398 (Vt. 2006).
[FN248] . Id. at 398.
[FN249] . See id. at 393-94, 398.
[FN250] . Similarly, although the Rhode Island courts have ultimately imposed limitations on the legislature pursuant to the state's constitutional fishing rights provision, a 1910 decision of the Rhode Island Supreme Court provides the nadir of effectualness of hunting and fishing rights provisions:
These are instances of the manner in which the Legislature exercised its powers over the rights of fishery, to which the people were entitled under the charter and usages of the state, and illustrate the fact that they were subject to the control of the General Assembly. The rights which the General Assembly had in 1822 and 1827 were not abridged by the foregoing provisions of article 1, § 17, of the Constitution, for it is expressly stated therein “no new right is intended to be granted, nor any existing right impaired, by this declaration.” In other words, no change was made. No greater privileges were reserved to the people than they already had, and no powers or rights of the General Assembly were thereby abridged. Therefore the whole subject of fisheries, floating and shellfish, and all kinds of shellfish whether oysters, clams, quahaugs, mussels, scallops, lobsters, crabs, or fiddlers, or however they may be known and designated and wherever situate within the public domain of the state of Rhode Island, are under the fostering care of the General Assembly. It is for the Legislature to make such laws regulating and governing the subject of lobster culture, oyster culture, clam culture, or any other kind of pisciculture, as they may deem expedient. They may regulate the public or private fisheries. They may even prohibit free fishing for a time and for such times as in their judgment it is for the best interest of the state so to do. They may withhold from the public use such natural oyster beds, clam beds, scallop beds, or other fish beds as they may deem desirable. They may make a close time within which no person may take shellfish, or other fish, and generally they have complete dominion over fisheries and fish as well as all kinds of game. We find no limitation, in the Constitution, of the power of the General Assembly to legislate in this regard, and they may delegate the administration of their regulations to such officers or boards as they may see fit.
[FN251] . See State v. San Luis Obispo Sportsman's Ass'n, 584 P.2d 1088 (Cal. 1978).
[FN252] . Cal. Const. art. 1, § 25.
[FN253] . San Luis Obispo Sportsman's Ass'n, 584 P.2d at 1092.
[FN254] . Id.
[FN255] . Id. at 1091.
[FN256] . Id. at 1092.
[FN257] . Id.
[FN258] . Id.
[FN259] . Id.
[FN260] . Id. at 1093-94.
[FN261] . Id. at 1095.
[FN262] . Id.
[FN263] . Id.
[FN264] . Id. at 1095-96.
[FN265] . Op. N.D. Att'y Gen. 2006-L-23 (Aug. 16, 2006).
[FN266] . See John Commins, Hunting Resolution Draws Concern, Chattanooga Times Free Press, May 15, 2005, at B1; Dan Cook, Amendment Wording Has to be Precise, Chattanooga Times Free Press, May 7, 2006, at C10; Editorial, Misfiring on Hunting Bill, The Tennessean, May 20, 2005, at 12A; Gouras, supra note 207, at B6; Richard Simms, Same-Side Disagreement, Chattanooga Times Free Press, Feb. 4, 2007, at C13; Weber, supra note 206, at 3B; Larry Woody, Amendment Splits Wildlife Groups, The Tennessean, Jan. 14, 2007, at 2C.
[FN267] . Tenn. Const. art. XI, § 3. See generally Environmental and Natural Resources Provisions in State Constitutions, 22 J. Land Resources & Envtl. L. 73, 220-23 (2002).
[FN268] . See H.J. Res. 108, 105th Gen. Assem., 2d Sess. (Tenn. 2008) (“The citizens of this state shall have the personal right to hunt and fish, subject to reasonable regulations and restrictions prescribed by law.”).
[FN269] . See Commins, supra note 266, at B3 (noting that state Senator Doug Jackson “amended his resolution to give state courts a so-called ‘rational basis standard’ to review hunting and fishing laws”); Cook, supra note 266, at C10 (quoting Mike Bulter, executive director of the Tennessee Wildlife Federation as stating that “[t]he important thing is that it calls for a rational-basis standard”).
[FN270] . H.J. Res. 108., 105th Gen. Assem., 2d Sess. (Tenn. 2008).
[FN271] . Id.
[FN272] . Id.
[FN273] . Id.
[FN274] . Id.
[FN275] . This creates room for alliance between environmentalists and hunting and fishing rights advocates. However, this should not be surprising given that “[h]unters are usually the most diligent conservationists, managing the environment over which they hunt so as to conserve the animals' habitat, and restricting their hunting so as to preserve stocks.” Griffin, supra note 24, at 3.
[FN276] . See e.g., Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Const. Trades Council, 485 U.S. 568, 575 (1988); NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 30 (1937); Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch.) 64, 118 (1804).
[FN277] . State v. Yardley, 32 S.W. 481, 484 (Tenn. 1895); see also Marion County Bd. of Comm'rs v. Marion County Election Comm'n, 594 S.W.2d 681, 684-85 (Tenn. 1980); Schoenlau-Steiner Trunk Top & Veneer Co. v. Hilderbrand, 274 S.W. 544, 548 (Tenn. 1925); Minter v. State, 238 S.W. 89, 90 (Tenn. 1922); Heiskell v. City of Knoxville, 189 S.W. 857, 859 (Tenn. 1916). Some normative canons of statutory construction, including the constitutional avoidance principle, are grounded in constitutional values. Ernest A. Young, Constitutional Avoidance, Resistance Norms, and the Preservation of Judicial Review, 78 Tex. L. Rev. 1549, 1551 (2000) [hereinafter Young, Constitutional Avoidance]; see also William N. Eskridge, Jr. & Philip P. Frickey, Quasi-Constitutional Law: Clear Statement Rules as Constitutional Lawmaking, 45 Vand. L. Rev. 593, 598 (1992) (“A good many of the substantive canons of statutory construction are directly inspired by the Constitution . . . .”).
[FN278] . State v. Burkhart, 58 S.W.3d 694, 697-98 (Tenn. 2001); State v. Mallard, 40 S.W.3d 473, 480 (Tenn. 2001).
[FN279] . As was well explained by Justice Scalia:
[FN280] . See generally Thomas W. Merrill, Rescuing Federalism After Raich: The Case for Clear Statement Rules, 9 Lewis & Clark L. Rev. 823 (2005); Ernest A. Young, The Rehnquist Court s Two Federalisms, 83 Tex. L. Rev. 1 (2004) [hereinafter Young, Two Federalisms].
[FN281] . See, e.g., Trevor W. Morrison, Constitutional Avoidance in the Executive Branch, 106 Colum. L. Rev. 1189, 1213-16 (2006); Gilbert Lee, Comment, How Many Avoidance Canons Are There After Clark v. Martinez?, 10 U. Pa. J. Const. L. 193, 199-200 (2007); Note, Should the Supreme Court Presume that Congress Acts Constitutionally? The Role of the Canon of Avoidance and Reliance on Early Legislative Practice in Constitutional Interpretation, 116 Harv. L. Rev. 1798, 1814 (2003); see also Stephen G. Breyer et al., Administrative Law and Regulatory Policy: Problems, Text, and Cases 327 (6th ed. 2006); William N. Eskridge, Jr., Dynamic Statutory Interpretation 286 (1994). Cf. Wis. Citizens Concerned for Cranes and Doves v. Wis. Dep't of Natural Res., 661 N.W.2d 858, 867-69 (Wis. Ct. App. 2003) (Dykman, J., dissenting) (noting that if Wisconsin voters pass the pending Wisconsin constitutional hunting rights amendment, the presumptions in the case would change to assuming that the legislature did not intend to restrict hunting).
[FN282] . Alexander M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics 173 (2d ed. 1986).
[FN283] . Eskridge, supra note 281, at 286.
[FN284] . Brian Galle & Mark Seidenfeld, Administrative Law's Federalism: Preemption, Delegation, and Agencies at the Edge of Federal Power, 57 Duke L.J. 1933, 2018 (2008).
[FN285] . Ernest A. Young, Two Cheers for Process Federalism, 46 Vill. L. Rev. 1349, 1359 (2001); see also Young, Two Federalisms, supra note 280, at 19.
[FN286] . James B. Staab, The Tenth Amendment and Justice Scalia's “Split Personality,” 16 J.L. & Pol. 231, 323 (2000).
[FN287] . Cornelia T.L. Pillard, The Unfulfilled Promise of the Constitution in Executive Hands, 103 Mich. L. Rev. 676, 688 (2005).
[FN288] . The Tennessee constitution provides that:
[e]very person who shall be chosen or appointed to any office of trust or profit under this Constitution, or any law made in pursuance thereof, shall, before entering on the duties thereof, take an oath to support the Constitution of this State, and of the United States, and an oath of office.
[FN289] . See Dawn E. Johnsen, Functional Departmentalism and Nonjudicial Interpretation: Who Determines Constitutional Meaning?, 67 Law & Contemp. Probs. 105, 113 (2004).
[FN290] . Ronald K.L. Collins, Litigating State Constitutional Issues: The Government=s Case, 1 Emerging Issues in St. Constitutional L. 201, 201 (1988).
[FN291] . Id.
[FN292] . Lewis L. Laska, The Tennessee Constitution: An Unlikely Path Toward Conservatism, in The Constitutionalism of American States 363 (George E. Connor & Christopher W. Hammons eds., 2008). The Tennessee Attorney General's standing is rather unique in comparison with attorneys general in other states. Under the Tennessee constitution, the Tennessee Attorney General is formally part of the judicial department of government and is selected by the members of the Tennessee Supreme Court. Tenn. Const. art. VI, § 5; see also Penny J. White & Malia Reddick, A Response to Professor Fitzpatrick: The Rest of the Story, 75 Tenn. L. Rev. 501, 511 n.86 (2008). In forty-three states, the citizens directly elect their attorney general. Calvin Massey, State Standing After Massachusetts v. EPA, 61 Fla. L. Rev. 249, 274 n.103 (2009). In five states, Alaska, Hawaii, New Hampshire, New Jersey, and Wyoming, the governor appoints the attorney general. Id. Maine joins Tennessee in providing a unique method, as its legislature chooses the attorney general by secret ballot. Id. In the District of Columbia, the attorney general is appointed by the mayor. Lawrence G. Wasden & Brian Kane, Massachusetts v. EPA: A Strategic and Jurisdictional Recipe for State Attorneys General in the Context of Emission Accelerated Global Warming Solutions, 44 Idaho L. Rev. 703, 721 n.168 (2008).
[FN293] . Paul Brest, The Conscientious Legislator's Guide to Constitutional Interpretation, 27 Stan. L. Rev. 585, 586 (1975); John O. McGinnis, Models of the Opinion Function of the Attorney General: A Normative, Descriptive, and Historical Prolegomenon, 15 Cardozo L. Rev. 375, 377, 383-84 (1993); Pillard, supra note 287, at 688, 692-98; David A. Strauss, Presidential Interpretation of the Constitution, 15 Cardozo L. Rev. 113, 127-30 (1993). In fact, it has been argued that the application and meaning of the Constitution is determined mostly through ordinary politics for which elected officials are responsible. Stephen M. Griffin, American Constitutionalism: From Theory to Politics 45 (1996).
[FN294] . See, e.g., Louis D. Bilionis, Conservative Reformation, Popularization, and the Lessons of Reading Criminal Justice as Constitutional Law, 52 UCLA L. Rev. 979, 1016-17 (2005); Dayna Bowen Matthew, The “New Federalism” Approach to Medicaid: Empirical Evidence that Ceding Inherently Federal Authority to the States Harms Public Health, 90 Ky. L.J. 973, 973-74 (2002).
[FN295] . See, e.g., Paul Brace & Martin Johnson, Does Familiarity Breed Contempt? Examining the Correlates of State-Level Confidence in the Federal Government, in Public Opinion in State Politics 19 (Jeffrey E. Cohen ed., 2006); Daniel N. Hoffman, Our Elusive Constitution: Silences, Paradoxes, Priorities 131 (1997); Laurance Lyon, Where Freedom Falters 22 (1927); David L. Shapiro, Federalism: A Dialogue 28 (1995); Edward L. Rubin, The Fundamentality and Irrelevance of Federalism, 13 Ga. St. U. L. Rev. 1009, 1049-50 (1997); Edward L. Rubin & Malcolm Feeley, Federalism: Some Notes on a National Neurosis, 41 UCLA L. Rev. 903, 933 (1994).
[FN296] . See Randy E. Barnett, Restoring the Lost Constitution: The Presumption of Liberty 206, 355-56 (2004); Donald L. Doernberg, Sovereign Immunity or the Rule of Law: The New Federalism's Choice 130 (2005); Lyon, surpra note 295, at 22; Shapiro, supra note 295, at 28-29; Robert J. Reinstein, Foreword: On the Judicial Safeguards of Federalism, 17 Temp. Pol. & Civ. Rts. L. Rev. 343, 349-50 (2008).
[FN297] . See Malcolm M. Feeley & Edward L. Rubin, Judicial Policy Making and the Modern State 191 (1998); Michael D. Tanner, Leviathan on the Right: How Big-Government Conservatism Brought Down the Republican Revolution 182-83 (2007); Randy E. Barnett, Three Federalisms, 39 Loy. U. Chi. L.J. 285, 285, 291 (2008); Michael Keenan, Is United States v. Morrison Antidemocratic?: Political Safeguards, Deference, and the Countermajoritarian Difficulty, 48 How. L.J. 267, 306 (2004); Saikrishna B. Prakash & John C. Yoo, The Puzzling Persistence of Process-Based Federalism Theories, 79 Tex. L. Rev. 1459, 1485 (2001).
[FN298] . See Randy Barnett, The Choice Between Madison and FDR, 31 Harv. J.L. & Pub. Pol'y 1005, 1005-07 (2008); Anthony J. Colangelo, Constitutional Limits on Extraterritorial Jurisdiction: Terrorism and the Intersection of National and International Law, 48 Harv. Int'l L.J. 121, 152 (2007); George Rutherglen, State Action, Private Action, and the Thirteenth Amendment, 94 Va. L. Rev. 1367, 1391 (2008); Roy W. Breitenbach, Comment, Perpich v. United States Department of Defense: Who Controls the Weekend Soldier?, 64 St. John's L. Rev. 133, 142, 147-49 (1989).
[FN299] . Robert F. Williams, Comparative Subnational Constitutional Law: South Africa's Provincial Constitutional Experiments, 40 S. Tex. L. Rev. 625, 636 (1999) [hereinafter Williams, Comparative].
[FN300] . See Eve Cary & Mary R. Falk, People v. Scott & People v. Keta: “Democracy Begins in Conversation,” 58 Brook. L. Rev. 1279, 1324 (1993); Melissa Sheridan & Bradford S. Delapena, Individual Liberties Claims: Promoting a Healthy Constitution for Minnesota, 19 Wm. Mitchell L. Rev. 683, 686 (1993); Jon Wesley Wise, Comment, State v. Reeves: Interpreting Louisiana's Constitutional Right to Privacy, 44 La. L. Rev. 183, 186-87 (1983).
[FN301] . See Barron v. Mayor of Baltimore, 32 U.S. (7 Pet.) 243, 250 (1833).
[FN302] . See Cary & Falk, supra note 300, at 1323-24; Sheridan & Delapena, supra note 300, at 686; Wise, supra note 300, at 186-87.
[FN303] . See Judith S. Kaye, Dual Constitutionalism in Practice and Principle, 61 St. John's L. Rev. 399, 404-05 (1987).
[FN304] . Cary & Falk, supra note 300, at 1325-27; Antony B. Klapper, Comment, Finding a Right in State Constitutions for Community Treatment of the Mentally Ill, 142 U. Pa. L. Rev. 739, 787-88 (1993).
[FN305] . William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489, 495 (1977).
[FN306] . A. E. Dick Howard, State Courts and Constitutional Rights in the Day of the Burger Court, 62 Va. L. Rev. 873, 878 (1976).
[FN307] . 1 Jennifer Friesen, State Constitutional Law: Litigating Individual Rights Claims and Defenses § 1.01 n.11 (4th ed. 2006).
[FN308] . 1 Wayne R. LaFave et al., Crim. Proc. § 2.12(a) (3d ed. 2008).
[FN309] . Id.; Louis Henkin, Economic Rights Under the United States Constitution, 32 Colum. J. Transnat'l L. 97, 124 (1994) (“[A]s the U.S. Supreme Court has become more restrictive in its constitutional interpretations, some state courts have tended to read state constitutional provisions to provide greater protection for civil and political rights than is provided by the federal Constitution.”).
[FN310] . Brennan, supra note 305, at 502-03.
[FN311] . See Cornell W. Clayton, Toward a Theory of the Washington Constitution, 37 Gonz. L. Rev. 41, 49 (2001); Paul W. Kahn, Two Communities: Professional and Political, 24 Rutgers L.J. 957, 968-69 (1993) (citing Earl M. Maltz, False Prophet-Justice Brennan and the Theory of State Constitutional Law, 15 Hastings Const. L.Q. 429 (1988)).
[FN312] . See generally, e.g., Clint Bolick, Brennan s Epiphany: The Necessity of Invoking State Constitutions to Protect Freedom, 12 Tex. Rev. L. & Pol. 137 (2007); Cary & Falk, supra note 300; Alan Florendo, The Impact of Feminine Leadership on State Courts: A Panel of Women Chief Justices, 12 Cardozo J.L. & Gender 929 (2006).
[FN313] . See generally, e.g., George Deukmejian & Clifford K. Thompson, Jr., All Sail and No Anchor-Judicial Review Under the California Constitution, 6 Hastings Const. L.Q. 975 (1979); James W. Diehm, New Federalism and Constitutional Criminal Procedure: Are We Repeating the Mistakes of the Past?, 55 Md. L. Rev. 223 (1996); James A. Gardner, The Failed Discourse of State Constitutionalism, 90 Mich. L. Rev. 761 (1992).
[FN314] . See Brennan, supra note 305, at 502.
[FN315] . Tarr, Understanding, supra note 129, at 166-67, 169; Robert F. Williams, Rights, in 3 State Constitutions for the Twenty-First Century: The Agenda of State constitutional Reform 8 (G. Alan Tarr & Robert F. Williams eds., 2006) [hereinafter Williams, Rights]; Daniel B. Rodriguez, State Constitutional Theory and Its Prospects, 28 N.M. L. Rev. 271, 299 (1998); Robert K. Fitzpatrick, Note, Neither Icarus nor Ostrich: State Constitutions as an Independent Source of Individual Rights, 79 N.Y.U. L. Rev. 1833, 1841-45 (2004).
[FN316] . Douglas S. Reed, Popular Constitutionalism: Toward a Theory of State Constitutional Meanings, 30 Rutgers L.J. 871, 873-74 (1999).
[FN317] . See Kerrigan v. Comm'r of Pub. Health, 957 A.2d 407 (Conn. 2008); Goodridge v. Dep't of Pub. Health, 798 N.E.2d 941 (Mass. 2003); Lewis v. Harris, 908 A.2d 196 (N.J. 2006); Baker v. State, 744 A.2d 864 (Vt. 1999); Reed, supra note 316, at 873-74.
[FN318] . See Sheff v. O'Neill, 678 A.2d 1267 (Conn. 1996); Reed, supra note 316, at 873-74.
[FN319] . See S. Burlington County NAACP v. Twp. of Mount Laurel, 336 A.2d 713 (N.J. 1975); Reed, supra note 316, at 873-74.
[FN320] . Michael D. Blanchard, The New Judicial Federalism: Deference Masquerading as Discourse and the Tyranny of the Locality in State Judicial Review of Education Finance, 60 U. Pitt. L. Rev. 231, 239 (1998).
[FN321] . Ellen Ash Peters, The Role of State Constitutions in Our Federal System, 143 Proc. Am. Phil. Soc'y 418, 425 (1999).
[FN322] . Risa E. Kaufman, States ERAs in the New Era: Securing Poor Women s Equality by Eliminating Reproductive-Based Discrimination, 24 Harv. Women's L.J. 191, 193 (2001).
[FN323] . Paul Lermack, The Constitution Is the Social Contract so It Must be a Contract . . . Right? A Critique of Originalism as Interpretative Method, 33 Wm. Mitchell L. Rev. 1403, 1431-32 (2007).
[FN324] . Paul L. Tractenberg, Education, in 3 State Constitutions for the Twenty-First Century: The Agenda of State constitutional Reform 241 (G. Alan Tarr & Robert F. Williams eds., 2006); Michael Heise, State Constitutions, School Finance Litigation, and the Third Wave : From Equity to Adequacy, 68 Temp. L. Rev. 1151, 1157-66 (1995).
[FN325] . See, e.g., Daan Braveman, Children, Poverty and State Constitutions, 38 Emory L.J. 577, 595-608 (1989); Helen Hershkoff, Welfare Devolution and State Constitutions, 67 Fordham L. Rev. 1403, 1428-32 (1999); Burt Neuborne, Foreword: State Constitutions and the Evolution of Positive Rights, 20 Rutgers L.J. 881, 893-901 (1989); William C. Rava, State Constitutional Protections for the Poor, 71 Temp. L. Rev. 543 (1998).
[FN326] . See generally Bryan P. Wilson, Comment, State Constitutional Environmental Rights and Judicial Activism: Is the Big Sky Falling?, 53 Emory L.J. 627 (2004) (discussing an environmental provision in Montana's constitution).
[FN327] . See generally Lynne Henderson, Revisiting Victim s Rights, 1999 Utah L. Rev. 383 (1999) (exploring victims' rights in the context of California's constitution).
[FN328] . See generally William C. Koch, Jr., Reopening Tennessee s Open Courts Clause: A Historical Reconsideration of Article I, Section 17 of the Tennessee Constitution, 27 U. Mem. L. Rev. 333 (1997) (reviewing the Tennessee constitution's open courts provision).
[FN329] . Blanchard, supra note 320, at 239.
[FN330] . Robert F. Williams, State Constitutional Law Processes 189 (1983) [hereinafter Williams, Law Processes].
[FN331] . G. Alan Tarr & Robert F. Williams, Foreword: Getting from Here to There: Twenty-First Century Mechanisms and Opportunities in State Constitutional Reform, 36 Rutgers L.J. 1075, 1112 (2005) [hereinafter Tarr & Williams, Getting From].
[FN332] . Id.
[FN333] . Marsha L. Baum & Christian G. Fritz, American Constitution-Making: The Neglected State Constitutional Sources, 27 Hastings Const. L.Q. 199, 200-01 (2000).
[FN334] . Helen Hershkoff, Positive Rights and State Constitutions: The Limits of Federal Rationality Review, 112 Harv. L. Rev. 1131, 1194-96 (1999).
[FN335] . Tarr & Williams, Getting From, supra note 331, at 1112.
[FN336] . See Justin Long, Intermittent State Constitutionalism, 34 Pepp. L. Rev. 41, 52-56 (2006).
[FN337] . See generally Jeffrey Usman, Non-Justiciable Directive Principles: A Constitutional Design Defect, 15 Mich. St. J. Int l L. 643, 684-85 (2007) (discussing constitutional provisions as providing aspirational goals).
[FN338] . See Long, supra note 336, at 52-56.
[FN339] . Sean O. Hogan, An Introduction to State Courts and Law, in The Judicial Branch of State Government: People, Process, and Politics 18 (Sean O. Hogan ed., 2006).
[FN340] . Rodriguez, supra note 315, at 292-302.
[FN341] . Joseph A. Ranney, Wisconsin s Constitutional Amendment Habit: A Disease or a Cure?, 90 Marq. L. Rev. 667, 687 (2007).
[FN342] . Id. at 699.
[FN343] . See generally Lawrence M. Friedman, A History of American Law 116 (2d ed. 1985).
[FN344] . Daniel J. Elazar, Foreword: The Moral Compass of State Constitutionalism, 30 Rutgers L.J. 849, 849 (1999).
[FN345] . Peter R. Teachout, “Trustees and Servants”: Government Accountability in Early Vermont, 31 Vt. L. Rev. 857, 866 (2007).
[FN346] . Charles I. Lugosi, Conforming to the Rule of Law: When Person and Human Being Finally Mean the Same Thing in Fourteenth Amendment Jurisprudence, 22 Issues L. & Med. 119, 164 n.218 (2006-2007).
[FN347] . John Warren Kindt, Internationally, The 21st Century Is No Time for the United States to Be Gambling with the Economy: Taxpayers Subsidizing the Gambling Industry and the De Facto Elimination of All Casino Tax Revenues Via the 2002 Economic Stimulus Act, 29 Ohio N.U. L. Rev. 363, 380 (2003).
[FN348] . Steven G. Calabresi & Sarah E. Agudo, Individual Rights Under State Constitutions When the Fourteenth Amendment Was Ratified in 1868: What Rights Are Deeply Rooted in American History and Tradition?, 87 Tex. L. Rev. 7, 101 (2008).
[FN349] . Id. at 101-02.
[FN350] . See generally Ann-Marie E. Szymanski, Pathways to Prohibition: Radicals, Moderates, and Social Movement Outcomes (2003).
[FN351] . William M. Wilson III, Note, Romer v. Evans: “Terminal Silliness,” or Enlightened Jurisprudence?, 75 N.C. L. Rev. 1891, 1910 (1997).
[FN352] . G. Alan Tarr, The State of State Constitutions, 62 La. L. Rev. 3, 7 n.17 (2001); G. Alan Tarr, Models and Fashions in State Constitutionalism, 1998 Wis. L. Rev. 729, 741-44 (1998) [hereinafter Tarr, Models].
[FN353] . Matthew S. R. Palmer, Using Constitutional Realism to Identify the Complete Constitution: Lessons from an Unwritten Constitution, 54 Am. J. Comp. L. 587, 596 (2006).
[FN354] . Martha F. Davis, The Spirit of Our Times: State Constitutions and International Human Rights, 30 N.Y.U. Rev. L. & Soc. Change 359, 382 (2006).
[FN355] . See Lermanck, supra note 323, at 1433; Reed, supra note 316, at 875. See generally Christopher W. Hammons, State Constitutional Reform: Is It Necessary?, 64 Alb. L. Rev. 1327 (2001) (discussing the length of state constitutions and their frequency of amendment).
[FN356] . Tarr, Models, supra note 352, at 741-42.
[FN357] . Id. at 742.
[FN358] . Id. at 744.
[FN359] . Id. at 742.
[FN360] . Id.
[FN361] . See Tarr, Understanding, supra note 129, at 168; Williams, Rights, supra note 315, at 8-9; Patience Drake Roggensack, To Begin a Conversation on Judicial Independence, 91 Marq. L. Rev. 535, 541 (2007). See generally Reed, supra note 316.
[FN362] . Williams, Law Processes, supra note 330, at 176.
[FN363] . Michael C. Dorf, Courts, Reasons, and Rules, 19 Quinnipiac L. Rev. 483, 499 (2000).
[FN364] . Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law 40 (1997).
[FN365] . Usman, supra note 337, at 664.
[FN366] . Lermack, supra note 323, at 1433.
[FN367] . Tarr, Understanding, supra note 129, at 160; Tarr, Models, supra note 352, at 744.
[FN368] . See Tarr, Understanding, supra note 129, at 160-61.
[FN369] . Edward J. Erler, Californians and Their Constitution: Progressivism, Direct Democracy and the Administrative State, 6 Nexus 237, 237 (2001). Indeed, one cannot legitimately argue that state constitutions do not contain some rather frivolous provisions.
[S]tate constitutions differ from the federal Constitution in the level of detail in which they describe, and therefore the extent to which they constrain, governmental action with respect to subjects covered by the constitution. For example, as Judge Kaye of the New York Court of Appeals is fond of pointing out, the New York Constitution contains a provision specifying the width of ski trails in the Adirondack Park. The California Constitution specifies the way in which taxes are to be assessed on golf courses. The Texas Constitution provides for banks' use of “unmanned teller machines.”
[FN370] . Daniel R. Gordon, Protecting Against the State Constitutional Law Junkyard: Proposal to Limit Popular Constitutional Revision in Florida, 20 Nova L. Rev. 413 (1995).
[FN371] . Williams, Law Processes, supra note 330, at 177.
[FN372] . 2 Frank P. Grad & Robert F. Williams, State Constitutions for the Twenty-First Century: Drafting State Constitutions, Revisions, and Amendments 29 (2006).
[FN373] . Larry Daughtrey, Keep Important Things in Focus, Like Hunting, The Tennessean, May 11, 2008, at 19A.
[FN374] . Id.
[FN375] . See Williams, Comparative, supra note 299, at 636.
[FN376] . Elazar, supra note 344, at 859.
[FN377] . Stephen Gardbaum, The Myth and the Reality of American Constitutional Exceptionalism, 107 Mich. L. Rev. 391, 446 (2008). See 10A Fla. Jur. 2d Constitutional Law § 371 (2009) (discussing application of the Florida constitution's right to privacy in medical decision making cases).
[FN378] . See Elazar, supra note 344, at 859.
[FN379] . Reed, supra note 316, at 875.
[FN380] . Id. at 885.
[FN381] . Id. at 898.
[FN382] . Michel Rosenfeld, The Rule of Law and the Legitimacy of Constitutional Democracy, 74 S. Cal. L. Rev. 1307, 1329-30 (2001).
[FN383] . Grad & Williams, supra note 372, at 29.
[FN384] . H.J. Res. 108, 105th Gen. Assem., 2d Sess. (Tenn. 2008) (“The citizens of this state shall have the personal right to hunt and fish, subject to reasonable regulations prescribed by law. The recognition of this right does not abrogate any private or public property rights, nor does it limit the state's power to regulate commercial activity. Traditional manners and means may be used to take non-threatened species.”).
[FN385] . The Tennessee State Library and Archives has audio recordings of the general assembly's debate of this measure, a debate which evinces a strong desire to safeguard hunting and fishing rights.
[FN386] . Daughtrey, supra note 373.
[FN387] . Grad & Williams, supra note 372, at 23.
[FN388] . See generally Wayne Capooth, The Golden Age of Hunting: Arkansas, Mississippi, Tennessee (2004); Stuart A. Marks, Southern Hunting in Black and White (1991); Whisker, supra note 24, at 1-36, 85-102.
[FN389] . See, e.g., Tony Barnhart, Southern Fried Football: The History, Passion, and Glory of the Great Southern Game (2000); Ed McMinn, God Bless the Vols: Devotions for the Die-Hard Tennessee Fan (2007); Warren St. John, Rammer Jammer Yellow Hammer: A Journey into the Heart of Fan Mania (2004); Clay Travis, Dixieland Delight: A Football Season on the Road in the Southeastern Conference (2007).
[FN390] . H.J. Res. 108, 105th Gen. Assem., 2d Sess. (Tenn. 2008).
[FN391] . Fitzpatrick, supra note 315, at 1870 (footnotes omitted).