The term “reasonable” doesn’t appear in the U.S. or Tennessee Constitutions, except for proscriptions against the government carrying out “unreasonable searches and seizures.”
But the Tennessee Wildlife Federation — with the endorsement of all but three members of the state Legislature — wants to add that word, and 59 or so others, in the form of a constitutional amendment that would place hunting and fishing on the list of legally protected rights enjoyed by Tennesseans.
The amendment, which if passed would be added to the section of the Tennessee Constitution that grants state government the authority “to enact laws for the protection and preservation of game and fish,” reads as follows:
“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.”
The process of getting the measure before voters has been years in the making. Conceived in 2004, the language has twice been approved by the General Assembly — most recently, this past legislative session — and must now attract “yes” votes from a majority of voters participating in the upcoming gubernatorial election.
Critics of the amendment suggest that a change to the Constitution is unnecessary and excessive.
Argues the state’s largest metropolitan newspaper, “a simple resolution would have sufficed to send the message that hunting and fishing is here to stay.” Furthermore, the use of the word “reasonable” is “vague and open to interpretation.” It could, for example, embolden litigious malcontents to challenge licensing and fee requirements placed upon sportsmen by the Tennessee Department of Fish and Wildlife and thus jeopardize “a crucial revenue source,” the Tennessean editorial board worries.
Those concerns, however, don’t appear to be shared by state government wildlife managers.
Nat Johnson, TWRA assistant executive director of staff operations, said the term “reasonable” sounds reasonable enough to officials and attorneys with the department, although he noted that the agency cannot by law take a formal stance of support or opposition on the measure.
Officials do, however, offer that they in no way see the language of the amendment as hindering “the responsibilities of the agency to set manner and means” for taking fish and wildlife, said Johnson, who also serves as TWRA’s legislative liaison to the Tennessee General Assembly.
“Legal staff has looked at this, and they have not seen it become an issue in any other states,” he said. “They haven’t seen that it provided any avenues for people to challenge a state’s ability to regulate and set reasonable rules and regulations.”
More than a dozen other states have guarantees of hunters’ rights written into their constitutions, and others are considering measures.
Tennessee Wildlife Federation CEO Michael Butler told TNReport his group consulted closely with state wildlife officials, constitutional attorneys and the chief legislative sponsors of the amendment, Sen. Doug Jackson, D-Dickson, and Rep. Joe McCord, R-Maryville, to ensure that the amendment language enumerates the desired right without undermining state government fish and wildlife management authority.
“Most people already think they have a right to hunt and fish. So for most people, this amendment is just confirming what they already thought,” Butler said. “They can’t really imagine not being able to do it.”
However, the whole point of the amendment, he said, is to add a layer of legal defense against political activists and pressure groups that believe hunting and fishing not only aren’t “rights,” but probably shouldn’t even be tolerated by government.
Constitutionally speaking, “all it would take now to get rid of a hunting or fishing season is a vote by the Legislature,” Butler said.
Johnson confirmed that the department advised the wildlife federation on the amendment “almost since its inception.”
“We worked to achieve a comfort level that we thought everybody could live with,” he said.
Vanderbilt constitutional law professor James Blumstein noted that although the term “reasonable” isn’t one you’ll find in constitutional language, it “permeates our law.”
While a subjective interpretation might at times be “fairly debatable,” Blumstein said, judges generally approach it from the standpoint of asking if government has “a rational basis for doing something, and that it meets a reasonableness test.”
“There will be some deference to the regulation, but the regulations have to be reasonable,” he said. In situations where hunting rights conflict with public safety, private property or species management goals, Blumstein said he believes the amendment leaves the government “ample authority to regulate.”
“But what the government cannot do is to simply say we’re against hunting, on the grounds of policy, or that we think that is immoral or that it’s inappropriate in some way, and just have a flat-out ban,” Blumstein said. “Most rights in the Constitution are not absolute rights, and this is recognizing that the right to hunt may exist, but it is not absolute.”