03/03/2026
From our friends at the Tennessee Fi****ms Association:
Legislators Cannot Repeal The Constitution by Repealing The Capacity to Bring Constitutional Challenges
An urgent alert to grassroots Tennesseans regarding SB1958/HB1971 and the attack on constitutional review
Bottom Line
Tennessee legislators—almost entirely members who identify as Republicans—are rushing to pass SB1958/HB1971. If enacted, the bill would repeal an existing statute (Tenn. Code Ann. § 1-3-121) that expressly provides that any affected party may bring a civil action to determine the constitutionality of government action and, if the government has violated the Constitution, obtain an injunction blocking enforcement of the law.
Worse, SB1958/HB1971 does not simply repeal. It replaces. The proposed language does a complete reversal: it expressly prohibits citizens from bringing civil actions under the statute to challenge the constitutionality of any state statute.
This is not a “procedural fix.” It is an attempt to shield unconstitutional enactments from timely judicial scrutiny—and to disrupt the constitutional structure Tennesseans rely on when government exceeds its authority.
What SB1958/HB1971 Does
Tenn. Code Ann. § 1-3-121 currently functions as a clear, accessible pathway for citizens and organizations to ask the courts a straightforward question: “Is this government action constitutional?” If the answer is no, the statute authorizes injunctive relief to stop enforcement.
SB1958/HB1971 would repeal that language and replace it with language that bars citizens from using the statute to challenge the constitutionality of state statutes.
This Is an Oath Issue—Not a Talking Point
The proposal and support of SB1958/HB1971 is, at minimum, in direct tension with legislators’ oaths of office—under which they swear before God that they will not take action impairing or eliminating rights protected by the Constitutions. Blocking constitutional challenges is not neutral. It is an attempt to weaken the citizen’s ability to enforce constitutional limits.
Senator Stevens’ “Procedural Fix” Claim Does Not Withstand Scrutiny
At least one supporter, Senator John Stevens (the Senate bill’s prime sponsor), has claimed that the original passage of Tenn. Code Ann. § 1-3-121 was a mistake. He claims SB1958/HB1971 is intended to “restore the status quo” to the way things were before § 1-3-121 was adopted in 2018. He told members of the Senate Judiciary this is “really just a procedural fix” and not a substantive change in the law.
But the reported support of Attorney General Jonathan Skrmetti for the legislation suggests those assurances were not entirely truthful—if they were truthful at all. When the Attorney General is involved, it is not because this is “procedural.” It is because it is consequential.
Why This Matters: Tennessee Has a Record of Enacting Unconstitutional Laws
Even if we momentarily set aside the motivations behind SB1958/HB1971, we must confront a basic question: Does Tennessee’s legislature have a propensity to propose and enact laws (or refuse to repeal statutes) that violate the Constitution?
In just the last two weeks, there are reports that Attorney General Skrmetti has concluded in two instances that the Legislature has enacted unconstitutional laws.
Example 1 (February 26, 2026): Settlement Conceding Two Statutes Were Unconstitutional
On February 26, 2026, the ACLU celebrated a court-ordered settlement in which two recently enacted statutes were declared—by agreement of the parties—unconstitutional. The statutes, codified at Tenn. Code Ann. §§ 7-68-103(b) and 7-68-104(e), made it a felony for local government officials to “vote in the affirmative” for policies deemed to be “sanctuary policies” as defined by state law. (Settlement Order, ¶ 2.)
Several Metro Nashville council members sued District Attorney Glenn Funk and Jonathan Skrmetti, in his official capacity as Attorney General for the State of Tennessee, in June 2025. The plaintiffs claimed the statutes violated “the First Amendment to the United States Constitution; Article I, Section 19 of the Tennessee Constitution; principles of legislative immunity and independence; and the Due Process Clauses of the Fourteenth Amendment and Article I, Section 8 of the Tennessee Constitution.”
Skrmetti did not fight. He certified to the Legislature that he could advance no argument in support of the constitutionality of the new laws. The State agreed to pay over $61,000 in taxpayer funds to reimburse legal fees incurred by the plaintiffs as a result of the unconstitutional acts of the legislators who proposed and supported the laws.
Example 2: Religious Charter-School Litigation and Attorney General Opinion 25-019
Within the last few days, Jonathan Skrmetti reportedly refused to intervene on behalf of the State to defend a lawsuit against Knox County challenging a state law banning religious charter schools.
Skrmetti issued formal Attorney General Opinion 25-019 on November 25, 2025, stating the statutes in question likely are unconstitutional. In that formal opinion, he concluded:
“Tennessee Code Annotated § 49-13-111(a)(2) requires public charter schools to ‘[o]perate as … nonsectarian[ and] nonreligious.’ In addition, § 49-13-104(16)(B) prohibits bodies that ‘promote the agenda of any religious denomination or religiously affiliated entity’ from sponsoring a public charter school. Those restrictions exclude otherwise qualified religious entities from participating in a public benefit, and no compelling interest is apparent. So § 49-13-111(a)(2)’s and § 49-13-104(16)(B)’s restrictions on religious charter schools likely violate the Free Exercise Clause.”
Example 3 (March 2023): Beeler v. Long Settlement Conceding Constitutional Violations
Also consider the federal court settlement in March 2023, when Skrmetti entered into a settlement agreement in Beeler v. Long. On behalf of the State, he agreed that the Legislature’s repeatedly enacted prohibition on individuals between the ages of 18–20 obtaining handgun permits—or relying on permitless carry—violated the Second Amendment, the Fourteenth Amendment, and the Federal Civil Rights Act.
Again, Tennessee taxpayers were forced to pay legal fees because legislators violated constitutional limits and, consequently, their oaths of office.
Example 4: Hughes v. Lee—Three-Judge Panel Strikes Down Criminal Statutes
There is also the case of Hughes, et al., v. Bill Lee, et al., where a three-judge trial court panel ruled that two Tennessee criminal statutes—the “intent to go armed” law and the “parks” prohibition creating gun-free zones in parks and on greenways—violated both the Tennessee Constitution and the Second Amendment.
While Governor Lee and Attorney General Skrmetti have appealed, even the State’s appellate brief acknowledges constitutional problems with the statutes; the State nonetheless seeks to retain the laws based on technicalities such as whether the Second Amendment’s scope of protected “arms” includes grenades or explosives.
This Pattern Is Not New: Courts Have Been Striking Down Tennessee Laws for Decades
These recent conclusions by the courts or the Attorney General are not isolated instances of legislative violations of constitutional limits. Consider:
Leech v. American Booksellers Ass’n, Inc., 582 S.W.2d 738 (Tenn. 1979): the Tennessee Supreme Court declared the Tennessee Obscenity Act of 1978 entirely void and unconstitutional.
Baxter v. Ellington, 318 F. Supp. 1079 (M.D. Tenn. 1970): a three-judge federal district court held Tennessee’s campus trespass statute (T.C.A. § 39-1215) unconstitutional for vagueness and overbreadth.
In 2009, a Davidson County chancellor declared a Tennessee statute concerning whether permit holders could carry a handgun in a restaurant that also served alcohol unconstitutionally vague because it was impossible to apply (it required individuals to determine whether the restaurant’s sales were primarily non-alcoholic).
Baker v. Clement, 247 F. Supp. 886 (M.D. Tenn. 1965): a three-judge federal district court declared unconstitutional Tennessee’s 1965 congressional districting statute.
Tyson Foods, Inc. v. McReynolds, 700 F. Supp. 906 (M.D. Tenn. 1988): the Middle District of Tennessee held Tennessee’s regulation of tender offers violated the Commerce Clause.
These are only a few examples. Many more likely exist, and many may be difficult to locate due to out-of-court settlements.
What SB1958/HB1971 Really Signals
It increasingly appears that Tennessee legislators—particularly members of the current Republican supermajority—have grown comfortable pushing constitutional boundaries and letting citizens bear the cost of fixing the damage through litigation.
It is as if legislators are being told they can enact anything they can muster enough votes to pass, and then treat that unconstitutional act as “the law” until a citizen or interest group raises the money to sue the State and win—through trial and appeals if necessary.
Meanwhile, the defense of unconstitutional government action is not paid by the legislators who caused it. It is paid by the very citizens whose rights were violated. And when the laws are finally struck down, the cycle begins again: tweak the language, pass a new version, and force citizens to start over.
Conclusion: Stop SB1958/HB1971 Before It Becomes the Playbook
The facts demonstrate that the effort by Republican legislators to take away the constitutional balance of authority—authority that vests in citizens the right to challenge unconstitutional state statutes—is itself an attack on constitutional structure and on the oath-bound limits of legislative power.
SB1958/HB1971 is also a direct attack on the people’s choice to structure Tennessee government into three branches and to authorize the judicial branch as the branch empowered to declare legislative actions unconstitutional and void.
SB1958/HB1971 must be stopped. It is a danger to constitutional boundaries on legislative authority. It is not a mere procedural tweak—it is an attempt to insulate the exercise of power from constitutional accountability.
Specific Call to Action
Do not assume someone else will carry this burden. The vote counts are influenced by pressure—real pressure—applied early and repeatedly.
Call your State Senator and State Representative today. Tell them: “Vote NO on SB1958/HB1971. Do not block citizens from challenging unconstitutional statutes.”
Call the members of the Senate Judiciary and House Judiciary Committees. Demand they refuse to advance SB1958/HB1971.
Ask one question and do not accept evasion: “If the Legislature passes an unconstitutional law tomorrow, should citizens be barred from asking a court to stop it?”
Demand a recorded vote. Then publish the results. Legislators count on quiet calendars and short memories—deny them both.
Share this newsletter. Forward it. Post it. Bring it to meetings. Make SB1958/HB1971 politically toxic.
SB1958/HB1971 is not “procedure.” It is power. And it must be stopped.
