Braden Boucek (Southeastern Legal Foundation) has posted Reclaiming the Genius of a Free State, Tennessee’s Forgotten Anti-Monopolies Clause (Belmont Law Review | Vol. 13: 1 | 2025) on SSRN. Here is the abstract:
Since its founding in 1796, Tennessee has constitutionally prohibited monopolies—they “shall not be allowed.” Yet, to the detriment of entrepreneurs, consumers, and citizens alike, lawmakers have had no reason to heed this forcefully stated prohibition when they enact what would have been considered to be a “monopoly” at the time of enactment. Tennessee courts tend to follow federal precedents when interpreting the Anti-Monopolies Clause, but the U.S. Constitution lacks an analogous provision. So state courts wind up looking at how federal courts treat a similar subject—economic liberty—and let that guide the constitutional analysis. Originalist methodology provides a better framework. The meaning of the Anti-Monopolies Clause is readily ascertainable based on its text and other contemporaneous sources. Tennesseans, at least, have the right to demand better treatment of a provision uniquely specified in their Declaration of Rights.
By lockstepping with federal courts when they review economic liberty claims, Tennessee courts find themselves employing highly deferential rational basis review that results in the drastic weakening of this constitutional provision. This is an error. It amounts to a rewrite of the text Now, monopolies are allowed any time the legislature (or a court) rationally conceives that they are related to a legitimate interest even though the Constitution provides that monopolies “shall not be allowed.” The difference is between “never“ and “almost always,“ a huge revision. Also, it is highly doubtful federal courts would reach this result if they were aware they were engaging with a right specifically enumerated given how federal law currently treats unenumerated rights.
In Part I, the article contrasts originalism with living constitutionalism and demonstrates originalism’s prominent role in Tennessee jurisprudence. Part II details the importance of Anti-Monopolies Clauses in early American constitutions, and in Tennessee. Next, in Part III, the article considers the flawed approach taken by Tennessee courts before identifying key trends. Part IV argues that the current state of the law is untenable because it is atextual, doctrinally inconsistent with how courts treat other enumerated rights, and not what the Tennessee Supreme Court has ever required. Finally, Part V outlines an originalist framework for courts and members of the bar to consider as an alternative framework. Tennessee’s long forgotten right can be restored if Tennessee courts begin to independently interpret the Anti Monopolies Clause and endeavor to determine its original, publicly understood meaning, a task they are well equipped to undertake through originalist methodology.