The normative role of state constitutions, which are simultaneously paramount state law and inferior to the whims of even the most minor federal regulation, is a matter of some uncertainty. In recent years, state constitutions have been significantly affected by another wave of popular constitutionalism. As part of this movement, since 1996, seven states have adopted constitutional provisions guaranteeing a right to hunt and fish. This article explores the constitutionalization of hunting and fishing rights under 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. It directs attention to the constitutional status of hunting and fishing rights under the federal and state constitutions including the dramatic surge in the constitutionalization of such rights since the mid-1990s. It addresses the reason for this surge as well as the existent legal effect of these state constitutional hunting and fishing rights provisions. With Tennesseans currently debating the adoption of such a provision, the article next turns to addressing the likely legal impact of Tennessee’s proposed hunting and fishing rights amendment. The article concludes by discussing the role of state constitutions and whether a hunting and fishing rights provision is the type of right that is appropriate for enshrinement therein.
77 TENN. L. REV. 57 (2009)