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Belmont Law Review

Abstract

This article argues that Tennessee’s Anti-Monopolies Clause—enshrined in Article I, Section 22 of the Tennessee Constitution since 1796—has been systematically underenforced and misconstrued by Tennessee courts. Although the constitutional text unequivocally provides that “monopolies are contrary to the genius of a free State and shall not be allowed,” judicial interpretation has diluted this categorical prohibition by importing deferential federal rational basis review and engaging in “lockstepping” with federal substantive due process doctrine. The author contends that this approach is doctrinally unsound because the U.S. Constitution contains no analogous anti-monopoly provision, rendering federal precedent inapposite. Through historical analysis grounded in originalist methodology, the article reconstructs the founding-era public meaning of “monopoly” as a government-conferred exclusive privilege that restrains common rights and economic liberty. It critiques Tennessee courts’ reliance on balancing tests and rational basis review as inconsistent with the text, structure, and enumerated nature of the clause, effectively rewriting “shall not” into “almost always.” The article concludes by proposing an originalist framework that restores the clause’s categorical force, eliminates balancing, and requires courts to independently interpret and enforce the provision according to its original public meaning.

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