Suffering Wrongs Without Remedies - Articles

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Posted by: David Hudson & Robert Dalton on Oct 31, 2018

Journal Issue Date: Nov 2018

Journal Name: Vol 54 No 11

Damages and the Tennessee Constitution

“… every man, for an injury done him in his lands, goods, person or reputation,
shall have remedy by due course of law ...”
 — Article I, Section 17 of the Tennessee Constitution

“Historically, damages have been regarded as the ordinary remedy for an
invasion of personal interest in liberty.”   
— Justice William Brennan[1]

More than 40 years ago, U.S. Supreme Court Justice William Brennan issued a clarion call about the importance of individual rights under state constitutions. Upset at the erosion of rights guaranteed by the United States Constitution, Brennan wrote that state constitutions were “font[s] of individual liberty” that often provide greater protection than the Supreme Court’s interpretation of federal law.[2] The next year, the Tennessee Supreme Court emphasized this view of constitutional jurisprudence, holding

… as to Tennessee’s Constitution, we sit as a court of last resort, subject solely to the qualification that we may not impinge upon the minimum level of protection established by Supreme Court interpretations of the federal constitutional guarantees. But state supreme courts, interpreting state constitutional provisions, may impose higher standards and stronger protections than those set by the federal constitution.[3]

Thus, the Tennessee Supreme Court has the authority to provide more expansive protection of individual rights than the U.S. Supreme Court has under the U.S. Bill of Rights.


Tennessee’s Declaration of Rights

Tennessee safeguards the protection of individual liberties in its constitution.  Thomas Jefferson once described an earlier version of the Tennessee Constitution as the “least imperfect … of the state constitutions,”[4] lauding a document that contained a lengthy and detailed “Declaration of Rights” within the heart of its text that went much further than the United States Constitution in the protection of individual rights.

The Tennessee Constitution’s Declaration of Rights contains the usual, familiar rights established by the federal Bill of Rights. Tennessee’s Declaration of Rights, however, also establishes a panoply of additional protections against governmental wrongs. Among others, the Declaration of Rights contains provisions for universal suffrage,[5] the protection of debtors[6] and prisoners,[7] free movement upon the Mississippi River,[8] the prohibition of martial law[9] and monopolies,[10] and even the right to abolish the government.[11]


The Right to a Remedy

To ensure judicial protection of these liberties contained within the Declaration of Rights, the Tennessee Constitution provides that “every man, for an injury done him in his lands, goods, person or reputation, shall have remedy by due course of law.”[12] This “Right to Remedy Clause,” along with the “Open Courts Clause,” is found in Article I, Section 17 of the Tennessee Constitution and was seen by contemporaries of the constitutional drafters as a cornerstone of our judicial system. In 1821, for example, the Tennessee Supreme Court analyzed this section and its role in Tennessee law. In strident terms, the court struck down an act of the Tennessee Legislature and emphasized the importance of Article I, Section 17 with its roots in the venerable Magna Carta:

This clause relates to every possible injury which a man may sustain and which affects him … And with respect to it, right and justice is to be done, without sale, denial, or delay. In Magna Charta this restriction is upon royal power; in our country it is upon legislative and all other power.”[13]


Constitutional Violations in a Modern Context

The textual language of Article I, Section 17 is quite clear, and the Right to Remedy Clause is foundational to Tennessee jurisprudence. It might well be expected, then, that the Tennessee Constitution is self-enforcing and Tennesseans are able to claim damages for violations of their rights under their state constitution. Unfortunately, however, that is not the case.

Tennesseans might be able to obtain declaratory or injunctive relief to prevent future constitutional violations by government officials, but there is currently no remedy of any sort to compensate a citizen for “an injury done him”14 by a governmental actor who has violated the provisions of the Tennessee Constitution.

In fact, the Tennessee Court of Appeals has declared: “So far as we are able to determine, the Tennessee courts [do not] give a state cause of action against a police officer for violating a person's civil rights.”[15] Federal courts have followed this lead and stated, without substantive analysis, that Tennessee does not provide a private right of action for violations of the Tennessee Constitution.[16] 

At the present time, the provisions of Article I, Section 17 seem to have been merely ignored or read out of the Tennessee Constitution altogether by the Tennessee Supreme Court. As a result of the Supreme Court’s neglect of Tennessee’s Open Courts and Right to Remedy clauses, very little modern legal scholarship exists on those topics at all. To the extent that such scholarship does exist, though, the assessments have generally been quite negative. Legal commentators have, for example, criticized the “peremptory manner” in which the courts have concluded that damages are not available for violations of the Tennessee Constitution.[17] And, one of Tennessee’s most scholarly jurists once opined that the Supreme Court’s narrowing of the application of Article I, Section 17 is “discordant with the plain meaning of the provision’s terms,”[18] “legally unsupported”[19] and based upon “fundamental errors of constitutional reasoning.”[20]


Remedies for Constitutional Violations in Other States

Because of its importance in our judicial system and its lineage from the Magna Carta, the language contained within Article I, Section 17 is quite widespread in the constitutions of other states. In fact, 40 states have constitutional provisions that are similar to those contained in Article I, Section 17 of the Tennessee Constitution.[21]

Fortunately, some state courts have ruled that there must be an implied private cause of actions for violating state constitutional rights. The Court of Appeals of New York reasoned in Brown v. State that damages for violations of equal protection and due process under the state constitution are “necessary and appropriate to ensure the full realization of the rights they state.”[22] New York’s high court explained that damages are a necessary deterrent to ensure that similar abuses don’t occur in the future.[23] The court concluded: “A damage remedy for constitutional torts depriving individuals of their liberty interests is the most effective means of deterring police misconduct, it is appropriate to the wrong and it is consistent with the measure by which personal injuries have historically been regulated.”[24]

More recently, the Iowa Supreme Court ruled that its state constitutional protections of equal protection and due process are self-executing and recognize implicitly causes for damages in case of violations.[25] The high court noted that the placement of the state bill of rights in the first article of the Constitution emphasized the importance the state’s founders placed on individual liberty: “If these individual rights in the very first article of the Iowa Constitution are to be meaningful, they must be effectively enforced.”[26] The Iowa high court traced the availability of damage awards for constitutional violations back to the English common law, noting that at common law damages were the preferred remedy over equitable remedies.[27]

Remedies for Violations of the Federal Constitution

Despite not having any explicit parallel to the Open Courts or Right to Remedy clauses, the United States Supreme Court held in Bivens v. Six Unknown Narcotics Agents that there is an implied right of action for some federal constitutional violations.[28] Federal officials entered Bivens’ home without a warrant, arrested him, manacled him in front of his wife and children, and threatened to arrest his family.[29] The United States Supreme Court held that Bivens could sue and recover damages for violations of his Fourth Amendment rights to be free from unreasonable searches and seizures. 

“Historically, damages have been regarded as the ordinary remedy for an invasion of personal interests in liberty,” wrote Justice William J. Brennan for the majority.[30] The Supreme Court reasoned that constitutional guarantees are worthy of vindication in their own right.

Since Bivens, the magnitude of federal damage remedies has evolved. The United States Supreme Court has expanded the Bivens principle in cases involving gender discrimination violating the Equal Protection Clause[31] and in cases involving deliberate indifference to prisoners’ medical needs violating the Eighth Amendment.[32] On the other hand, the Supreme Court has seemed reluctant to apply the rationale of Bivens when there are alternative remedies, saying it is “a disfavored judicial activity.”[33] At no time since 1971, however, have federal victims of violations of the United States Constitution found themselves entirely deprived of a remedy. Meanwhile, their counterparts in Tennessee who have been victims of violations of their rights under the Tennessee Constitution have never had any remedy during that time period.



The Tennessee Supreme Court declared in 1961 that the protections in our state bill of rights are self-executing.[34] The freedoms in the Tennessee Declaration of Rights are too important not to provide a remedy for persons harmed by government officials. Furthermore, as one commentator observed, “Awarding damages will serve to confirm Tennessee’s stance that it takes the state constitution seriously.”[35]

When there is a right, there should be a remedy.  United States Supreme Court Chief Justice John Marshall declared this principle years ago: “The very essence of civil liberty certainly consists of the right of every individual to claim the protection of the laws, whenever he receives an injury.”[36]

As the ancient maxim instructs us, “Equity will not suffer a wrong to be without a remedy.” Tennesseans have suffered violations of their rights under their state constitution for too long without any remedy. The time has come for the Tennessee Supreme Court to finally restore Article I, Section 17 to its rightful place as a cornerstone of Tennessee constitutional law.

ROBERT DALTON is an attorney from southern middle Tennessee. He is a graduate of the Nashville School of Law.
DAVID L. HUDSON JR. is the author, co-author or co-editor of more than 40 books, including several on the First Amendment. He is a visiting associate professor of practice of law at Belmont University College of Law and also teaches at the Nashville School of Law. Recently, the Nashville School of Law awarded him the Distinguished Teacher award.



1. Bivens v. Six Unknown Narcotics Agents, 403 U.S. 388, 395 (1971).  
2. William J. Brennan, “State Constitutions and the Protection of Individual Rights,” 90 Harv. L. Rev. 489, 491 (1977).  
3. Miller v. State, 584 U.S. 758, 760 (1978).  
4. J.G.M. Ramsey, The Annals of Tennessee to the End of the Eighteenth Century 650 (Kingsport Press 1926) (1853).
5. Tenn. Const. Art. I,  Sec. 5.
6. Tenn. Const. Art. I, Sec. 18.
7. Tenn. Const. Art. I, Sec. 12, 13 and 32.
8. Tenn. Const. Art. I, Sec. 29.
9. Tenn. Const. Art. I, Sec. 24 and 25.
10. Tenn. Const. Art. I, Sec. 22.
11. Tenn. Const. Art. I, Sec. 1 and 2.
12. Tenn. Const. Art. I, Sec. 17.
13. Townsend v. Townsend, 7 Tenn. 1, 14 (Tenn. 1821).
14. Tenn. Const. Art. I, Sec. 17.
15. Lee v. Ladd, 834 S.W.2d 323, 325 (Tenn. Ct. App. 1992).  
16. Cline v. Rogers, 87 F.3d 176, 179 (6th Cir. 1996); Wooley v. Madison County, 209 F.Supp. 2d 836, 844 (W.D. Tenn. 2002).  
17. Gail Donoghue & Jonathan I. Edelstein, “Life After Brown: The Future of State Constitutional Tort Actions in New York,” 42 N.Y.L. Sch. L. Rev. 447, 538, n. 465 (1998).
18. 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, 342 (1997).
19. Id. at 411-412.
20. Id. at 415.
21. Thomas R. Phillips, “The Constitutional Right to a Remedy,” 78 N.Y.U. L. Rev. 1309, 1310 (2003).
22. Brown v. State, 674 N.E.2d 1129, 1139 (N.Y. 1996).  
23. Id. at 1141.  
24. Id. at 1144.
25. Godfrey v. State, 898 N.W.2d 844 (Iowa 2017).  
26. Id. at 865.  
27. Id. at 866-868.  
28. 403 U.S. 388 (1971).  
29. Id. at 390.   
30. Id. at 395.  
31. Davis v. Passman, 422 U.S. 228 (1979).  
32. Carlson v. Green, 446 U.S. 14 (1980).
33. Ziglar v. Abbasi, - U.S. -, 137 S.Ct. 1843 (2017).  
34. Washington County Election Comm’n v. City of Johnson City, 350 S.W.2d 601, 603 (Tenn. 1961).
35.  Lance R. Chism, “Bivens-Type Actions Under State Constitutions: Will Tennessee Give You a Remedy?” 30 U. Mem. L. Rev. 409, 438 (2000).
36. Marbury v. Madison, 5 U.S. 1 Cranch 137, 163 (1803).