Armed Revolt and the Constitutional Right of Revolution
In the course of its existence, the State of Tennessee has adopted three constitutions, those of 1796, 1834 and 1870, the latter of which, as amended, currently is in force. From its initial adoption in 1796, the Declaration of Rights contained in Article I of the Tennessee Constitution has started with two unusual and rarely invoked sections, which preserve in the people what has been recognized as a right of revolution. They state:
Section 1. All power inherent in the people " Government under their control.
That all power is inherent in the people, and all free governments are founded on their authority, and instituted for their peace, safety, and happiness; for the advancement of those ends they have at all times, an inalienable and indefeasible right to alter, reform, or abolish the government in such manner as they may think proper.
Section 2. Doctrine of nonresistance condemned.
That government being instituted for the common benefit, the doctrine of non-resistance against arbitrary power and oppression is absurd, slavish, and destructive of the good and happiness of mankind.
These provisions were little noticed by the courts for two centuries until they were relied upon by the Tennessee courts in a series of cases beginning in 1992 to support state constitutional rights relating to various aspects of reproductive and sexual privacy, including the right to procreate (or not), the criminalization of homosexual conduct and the right to an abortion. The University of Tennessee's Glenn Reynolds has argued that these clauses are also interdependent with the right to keep and bear arms contained in Article I, Section 26 of the constitution.
Tennessee is not alone in its constitutional reservation of the right of revolution. As noted by Justice William O. Douglas in the appendix to his dissent in Scales v. United States, the constitutions of 15 states at one time or another had a clause reserving the right of the people to alter or abolish their governments, while Tennessee and two other states had supplementary "nonresistance" clauses to emphasize the right to alter or abolish originated in the right of revolution. Justice Douglas observed the right to change the government can be exercised either in the manner recognized in the present constitution, or by a convention called to change the constitution, or by an actual revolution.
The Tennessee Constitution confers this right of actual revolution in Article 1, Sections 1 and 2. The Supreme Court recognized these provisions establish a "distinctive political autonomy" that "gives the people, in the face of governmental oppression and interference with liberty, the right to resist that oppression even to the extent of overthrowing the government." There are practical considerations to this right, however. While the right to actual armed revolt is recognized, it should only be exercised when oppression is so extreme as to justify violence. It should also be observed that the government has the duty to maintain existing institutions, by force if necessary against armed revolt. An armed revolution is only a revolution when it succeeds. If it does not, it is only a rebellion. It is therefore generally recognized that the right to "alter, reform, or abolish the government" is limited for practical purposes by the peaceful vehicles for change set forth in the constitution.
Currently, Tennessee has two basic means of altering its constitution. The first requires that a majority of a sitting general assembly approve an amendment, a six-month publication period, and then submission to the next chosen general assembly, which must then approve the change by a two-thirds vote of each house, after which it is submitted to the electorate for approval. This procedure was first set out in the Constitution of 1834 and was continued in the Constitution of 1870. As a second means of effecting change, the legislature has the option to call a constitutional convention. This second means is specifically spelled out in the Constitution of 1870 (and slightly altered in 1953), and was the only means set out in the Constitution of 1796. Oddly, a constitutional convention was not a method specifically provided for in the Constitution of 1834, although in 1865, Military Governor Andrew Johnson invoked the people's right to "alter, reform, or abolish" to call a constitutional convention to amend the Constitution of 1834 to abolish slavery and reflect other results of the Civil War.
The most historically significant invocation of the right of revolution occurred in the context of the secession crisis of 1860-1861. Abraham Lincoln was elected president of the United States in November 1860. Fearing that federal power would be used to limit and eventually end the institution of slavery, South Carolina led a procession of lower South states out of the Union. In each case, a convention was called to enact an ordinance of secession, thereby invoking a right to leave the Union believed to be present in the United States Constitution.
While Tennessee was a southern state, its citizens were reluctant to leave the Union. A decade and a half after his death, Andrew Jackson remained a hero in the state, and his strong stand for the Union in the Nullification Crisis in 1833 still reverberated in the state. Tennesseans considered the preservation of the Union a guarantee of liberty. On the other hand, the majority of the people in the state believed in the institution of slavery, and resented Northern abolitionists who not only advocated resistance to the fugitive slave law, but who, on the fringes, advocated open slave rebellion. In the minds of most Tennesseans, the crisis of 1861 was the result of the actions of extremists on both sides.
Gov. Isham Green Harris believed that Tennessee belonged with its fellow slave states. Born in Franklin County in 1818, Harris left home at the age of 14 to embark on a successful mercantile career. But his brother, William R. Harris, was established as a lawyer in Paris, in Henry County, and Green, as his family and friends knew him, desired to join the profession. He was admitted to the bar in 1841 and became a fine lawyer. After stints in the state senate and the United States Congress, he moved to Memphis and set up a law practice with his brother, who was eventually appointed to the state Supreme Court by then Gov. Andrew Johnson, even though Green Harris and Johnson were bitter political enemies. After successfully stumping for James Buchanan in the 1856 presidential election, Harris was elected governor in 1857 and again in 1859 on the Democratic ticket, and was a strong secessionist.
In late December 1860, Harris called a special session of the General Assembly to address the issue of Tennessee's relations to the rest of the Union. When the legislators convened on Jan. 7, 1861, Harris met them with a message that read as an indictment of the North, abolitionists, and the Republican Party, which at the same time claimed the utter blamelessness of the South in precipitating the crisis. Harris proposed five constitutional guarantees that would prevent the South from being "oppressed" by the federal government, and recommended that the issue of calling a state convention be submitted to the people, and that delegates be selected in case the convention measure passed. The referendum would place the "whole matter in the hands of the people, for them, in their sovereignty, to determine how far their rights have been violated, the character of redress or guaranty they will demand, or the action they will take for their present and future security."[15\
Eventually, the legislature passed the legislation proposed by Harris, but added a significant proviso: that any convention that had "for its object a change of the position or relation of this State to the National Union or her sister Southern States" would not be binding until ratified by a majority of the qualified voters of the state measured by the number of voters who voted in the election of 1859. Rather than a convention with limitless power to secede from the Union, secession would require a referendum on the subject to be submitted to an electorate that was not ready to secede. Indeed, when the vote was taken on Feb. 9, 1861, on the question of a convention and of potential delegates, not only was the convention voted down, but a majority of Unionist delegate candidates won.
Harris and his fellow secessionists had badly miscalculated the strength of their position but were undeterred. They remained quiescent for a period after the vote in February. Lincoln took office on March 4, 1861 and faced a crisis concerning the federal holdout at Fort Sumter off Charleston, South Carolina. While the majority of Tennesseans voted pro-Union in February, they opposed the use of federal "coercion" against the seceded states. When the Confederates attacked the fort in mid-April, many deemed Lincoln's call for 75,000 volunteers the aggressive act, not the reduction of the fort. Harris defiantly replied to the call for volunteers: "Tennessee will not furnish a single man for purposes of coercion but 50,000 if necessary for the defense of our rights and those of our southern brothers."
The secessionist faction wasted no time in taking advantage of the changed circumstances. After his fiery reply to the federal government's request that Tennessee supply troops to suppress the rebellion, the governor called a special session of the legislature for April 25, 1861. In the meantime, he sent envoys to the Confederate government and made other preparations to join the Confederacy. Harris fashioned a plan to expedite Tennessee's transmutation into the Confederacy, which bypassed the convention and submitted the issue to the people by referendum. A secret session of the legislature worked on the details and approved measures that created a military alliance between Tennessee and the Confederacy.
On May 7, the General Assembly passed a measure to submit two questions to the electorate on June 8. The first question sought the approval of a "Declaration of Independence and Ordinance dissolving the Federal Relations between the State of Tennessee and the United States of America," and the second adopted or rejected the provisional constitution of the Confederate States. Doubtlessly fearing that a drawn out process might allow the pro-Southern fever in the state to subside, and still stinging from the defeat in February, Harris rejected a procedure that would call for a convention and ordinance of secession like that used by the other seceded states. The people would vote on the Declaration of Independence and Ordinance directly, and in doing so would invoke the right of revolution contained in Article 1, Section 1 of the Tennessee Constitution of 1834:
We, the people of the State of Tennessee, waiving any expression of opinion as to the abstract doctrine of secession, but asserting the right, as a free and independent people, to alter, reform, or abolish our form of government in such manner as we think proper, do ordain and declare that all the laws and ordinances by which the State of Tennessee became a member of the Federal Union of the United States of America are hereby abrogated and annulled, and that all the rights, functions, and powers which by any of said laws and ordinances were conveyed to the Government of the United States, and to absolve ourselves from all the obligations, restraints, and duties incurred thereto; and do hereby henceforth become a free, sovereign, and independent State. (emphasis provided)
When the vote was held on June 8, the electorate approved this "Declaration," and the state's joining the Confederacy, by a majority of approximately 55,000 votes, although East Tennessee rejected the two questions by a factor of two to one.
Was Harris's procedure in May and June 1861 a proper invocation of the right of revolution embodied in the Tennessee Constitution? The Constitution of 1834 contained several substantive references to the United States. Article I, Sections 9 and 10 required members of the General Assembly to be citizens of the United States. Article III, Section 3 required the governor to be a citizen of the United States, Article IV, Section 1 required voters to be citizens of the United States. Article X, Sections 1 and 2 required oaths of state officers to support the Constitution of the United States. There were several other incidental references to the United States in the Constitution of 1834 as well. If Tennessee became a Confederate state, necessarily these requirements relating to United States citizenship and allegiance would require a change in the Constitution of 1834, a change that could only be brought about as provided in Article XI, Section 3. East Tennessee lawyer Oliver P. Temple, a Unionist, reached the same conclusion, noting that the June 8 referendum clearly bypassed the requirement in Article XI, Section 3, that required "one legislature proposing certain specific amendments, which must be adopted by two-thirds of the members of the next succeeding legislature, and approved by the voters of the state in the next regular election." In invoking the constitutional provision conferring the right of revolution, Harris and the secessionists in the General Assembly had violated another.
Tennessee did not "secede" from the Union in the sense of claiming that that disputed right existed under the United States Constitution. Rather, a majority of the legislature and electorate asserted the people's more ancient right to revolution, a right few in Tennessee would have denied existed. After the war, in a case relating to validity of actions on the part of the state bank in aid of the Confederate war effort, the Tennessee Supreme Court acknowledged the invocation of the right in 1861:
The Legislature of 1861 claimed the right to declare the independence of the State, and to separate from the Federal Union, provided the people of the State in their sovereign capacity should so determine. This right was ascerted (sic) and ratified by the people, and it was so far successful that for a time all traces of the authority of the United States Government were obliterated. The Government of the United States denied this right asserted by the State, maintaining that the Constitution of the United States formed an "indestructible union with indestructible states." The issue thus joined was submitted to the arbitrament of arms.
In the course of the "arbitrament of arms," federal forces overran much of the state early in the war, Tennesseans fought on both sides, and Tennessee became the site of more battles and skirmishes than any other state besides Virginia. When the Union prevailed, Gov. Harris went into temporary exile in Mexico. Ultimately unsuccessful, the revolution of 1861 became a mere rebellion. This was recognized by the Supreme Court a year after the war ended. While the court noted that the abstract issue of the constitutionality of secession might arguably be unsettled, Confederate Tennessee's assertion of the right of revolution to separate from the Union "culminated in ... war; the authorities controlling the federal government triumphed, and the question is, we hope, finally and forever settled by that tribunal from which there is no appeal."
1. With the exception of the placement of a comma or two, the language of these two provisions remained the same in the Tennessee Constitutions of 1796, 1834, and 1870. Wallace McClure, State Constitution-Making, with Especial Reference to Tennessee (Nashville: Marshall & Bruce Company, 1916), 377-81.
2. Davis v. Davis, 842 S.W.2d 588, 599 (Tenn. 1992), on rehearing in part, certiorari denied. 507 U. S. 911.
3. Campbell v. Sundquist, 926 S.W.2d 250 (Tenn.Ct.App., 1996), appeal denied (June 10, 1996), appeal denied (Sept. 9, 1996).
4. Planned Parenthood of Middle Tennessee v. Sundquist, 38 S.W.3d 1, 13-14 (Tenn. 2000).
5. See Glenn Harlan Reynolds, "Guns, Privacy and Revolution," 68 Tenn. L. Rev. 635 (Spring, 2001) and "The Right to Keep and Bear Arms Under the Tennessee Constitution: A Case Study in Civic Republican Thought," 61 Tenn. L. Rev. 647 (1994).
6. 367 U.S. 203, 275 (1961). Notwithstanding the language in Davis claiming a distinct uniqueness to Tennessee's provisions for revolution, Justice Douglas's survey demonstrates they are merely unusual, not unique.
7. Id. at 277.
8. Davis v. Davis, supra at 599.
9. Scales (Douglas, J., dissenting), at 277-78; Edward Everett, The Questions of the Day (New York: H. H. Loyd, 1861), 238, 258; Cummings v. Beeler, 189 Tenn. 151, 179, 223 S.W. 2d 913, 924 (1949); West v. Carr, 212 Tenn. 367, 375, 370 S.W.2d 469, 472 (1963), app. dismissed, cert. denied, 378 U. S. 557 (1964); Illustration Design Group v. McCanless, 224 Tenn. 284, 294-95, 454 S. W. 2d 115, 199 (1970).
10. McClure, State Constitution-Making, 58-59, 444-46; Tenn. Code Ann., IA:726-27 (compiler's notes), 879-81. Johnson's 1865 constitutional convention was not called as such, but acted as such.
11. See War of the Rebellion: A Compilation of the Official Records of the Union and Confederate Armies, (Washington, D. C.: U. S. Government Printing Office, 1880-1901). Ser. IV, vol. 1, pp. 1, 42, 43-44, 54, 70, 80, 223, 287-88, 335-36.
12. South Carolina had claimed the right to "nullify" federal authority to enforce a tariff that adversely affected the economic situation of the state. As president of the United States, Andrew Jackson denied that right and for a brief period in 1833 threatened armed invasion of the Palmetto State. The situation was eventually defused but was an obvious precursor to the events of 1860-1861.
13. Jonathan M. Atkins, Parties, Politics and the Sectional Conflict in Tennessee, 1832-1861, (Knoxville: University of Tennessee Press, 1997), 228-29.
14. "End of an Eventful Life," Memphis Commercial Appeal, July 9, 1897; "Grim Death Claims a Great Statesman," Chattanooga Daily Times, July 9, 1897. Justice William Harris died of injuries received when the steamboat Pennsylvania exploded on the Mississippi River in 1858.
15. White, Messages of the Governors of Tennessee, 5:255-69
16. Atkins, Parties, Politics and the Sectional Conflict in Tennessee, 239-42.
17. Ibid., 244-46; Charles L. Lufkin, "Secession and Coercion in Tennessee, the Spring of 1861," Tennessee Historical Quarterly, 50 (Summer 1991): 98, 100-104; "Stand Firm," Nashville Republican Banner, April 18, 1861; "Self Defense," and "To the People of Tennessee," ibid., April 19, 1861; "Memorial," Memphis Daily Appeal, April 14, 1861; "The Convocation of the Legislature," ibid, April 18, 1861; White, Messages of the Governors of Tennessee, 5:272-73.
18. Ibid., 5: 279-87
19. OR, Ser. IV, vol. 1, p. 290
20. Atkins, Parties, Politics and the Sectional Conflict in Tennessee, 257.
21. Oliver P. Temple, East Tennessee and the Civil War, 1899, reprint (Freeport, NY: Books for Libraries Press, 1971), 207-8. Temple went on to note that Tennessee's military alliance with the Confederacy before the June 8 referendum approved Tennessee's leaving the Union violated Article I, Section 10 of the United States Constitution prohibiting states entering into alliances.
22. Atkins, Parties, Politics and the Sectional Conflict in Tennessee, 179-80, 232, 245. While few would have denied the existence of the right, many, especially in East Tennessee, thought that the "oppression" necessary to invoke it did not exist.
23. State v. President of Bank of Tennessee, 64 Tenn. 1, 17 (1875).
24. Harris returned to Tennessee in late 1867 to practice law and was elected United States senator in 1877, an office he held for the remaining 20 years of his life.
25. Smith v. Isenhour, 43 Tenn. 214, 216-17 (1866).
SAM ELLIOTT is a graduate of the University of Tennessee College of Law and is a member of the Chattanooga firm of Gearhiser, Peters, Lockaby, Cavett and Elliott PLLC. His practice focuses on commercial litigation and governmental representation. He has published two books on the Civil War and is the author of a forthcoming biography of Isham G. Harris, to be published in the fall of 2009. He is a member of the Tennessee Historical Commission and is currently the vice president of the Tennessee Bar Association.