Constitution of Indiana

The 1816 (superseded) and 1851 Constitutions of the State of Indiana, located in the Indiana Statehouse Rotunda.

The Constitution of Indiana is the highest body of state law in the U.S. state of Indiana, establishing the structure and function of government, and enumerating specific rights of Indiana citizens. It is composed of a preamble, articles, and amendments. The constitution may be amended by the Indiana General Assembly subject to ratification by vote of the people, as specified by Article 16 of the constitution. The current constitution is the second Constitution of Indiana, enacted in 1851 in response to a fiscal crisis in the 1840s, with numerous amendments. The first constitution was created in 1816 for the Territory of Indiana after the United States Congress had agreed to grant statehood.

The Constitution, among other provisions, specifies a democratic republican form of government (pursuant to Article IV, Section IV, first clause, of the U.S. Constitution) consisting of three branches: executive including administration, legislative, and judicial, a bill of rights, grants suffrage and regulates elections, provides for a state militia, state educational institutions, and sets limits on government indebtedness.

Under the principles of federalism, the Indiana Constitution is subordinate only to the U.S. Constitution and federal law.

Constitution of 1816

On May 6, 1816, the United States Congress passed an enabling act granting Indiana permission to form a government and join the Union as a state. Slavery in Indiana was a major issue in the territory in those days and the abolitionists had been preparing for statehood with hope of instituting a constitutional ban on slavery. The Territory of Indiana had previously been governed by the Laws of Indiana Territory 1801–1809.

Constitutional Convention

See also: Category:Delegates to the 1816 Indiana constitutional convention

A delegation of 43 men representing the population of Indiana's counties met at a convention in Corydon, the territorial capitol, to write a constitution for the state. All but two counties were represented. The delegation included Jonathan Jennings(later to become first governor of Indiana), who presided over the convention, William Hendricks, who served as secretary, Dennis Pennington, Davis Floyd, Ratliff Boon, and Noah Noble among others. The majority of the members were associated with the anti-governor and anti-slavery faction that controlled the territorial legislature. Throughout June 1816 the delegates worked on the constitution. The summer heat often caused the delegation to move outdoors and work beneath the shade of a giant elm tree which would later be called the Constitution Elm and made a memorial, the trunk of which is still preserved.

The delegates adopted the constitution on 29th June, 1816, by a simply majority vote (33-8). It was not submitted to the public for ratification.

Summary and features

Indiana's 1816 constitution was very similar to that of the other states at the time in that it organized the government into a republican form and created a basic framework for the functions of government. Instead of being specific on most individual issues, it broadly defined principles and enabled the state to function as a loosely bound unit. Large parts of the constitutions of Kentucky and Ohio were copied verbatim. The few alterations made to their formula resulted in the legislative branch being dominant over the executive and judicial. The legislature was set to meet annually, and elections would be held annually to elect representatives, with senators being elected every three years. The governor served a term of three years, and was limited to two consecutive terms. The governor's vetoes could be overridden by a simple majority vote of the legislature. The judicial branch and its districts were to be created and adjusted by the legislature; the governor appointed the judges to serve seven-year terms with the confirmation of the senate.

Article One of the constitution contained a bill of rights conferring many of the same rights as the United States Bill of Rights. "The People" were explicitly noted as being the sovereigns of the state. Voting rights were granted to all white males over twenty-one years of age who had lived in the state for one year. All white men age 18 to 45 were required to serve in the militia when called upon to do so, while non-whites were explicitly denied entrance into the militia. The constitution placed a ban on slavery and involuntary servitude, but did allow for existing indenturing arrangements to continue.

The central item which was new to American constitutions was a liberal clause ordering the creation of a "general system of education, ascending in regular gradation from township schools to a state university wherein tuition shall be gratis and equally open to all." This was a significant alteration and expansion of the education clauses of the template constitutions used during the convention.

One of the most important provisions in the first state constitution of 1816 was Article 8, Section 1, which expressly forbid the introduction of slavery in the state and was written in such a way to prevent slavery from ever being permitted in the state, even forbidding the anti-slavery clause to be changed by constitutional amendment. The section said the constitution could be amended for any reason "But, as the holding any part of the human Creation in slavery, or involuntary servitude, can only originate in usurpation and tyranny, no alteration of this constitution shall ever take place so as to introduce slavery or involuntary servitude in this State, otherwise than for the punishment of crimes, whereof the party shall have been duly convicted." This part of the constitution was retained into the new constitution written in 1851.

Criticisms and call for rewrite

Rapid social change initiated need to revise the constitution. Some of the divisive issues were guaranteeing secrecy of ballots, granting more local power over school funding, suffrage for immigrants, concerns over the amendment process for the constitution, extending legislative terms and legislative sessions, the impeachment process for state officials, limiting legislative authority over local matters. This resulted in a new constitutional convention being convened in 1850.

Constitution of 1851

In the 1840s, a crisis in the state due to overspending caused the state to become insolvent. The situation, and the call for constitutional change to prevent a reoccurrence of the events, finally made the idea of a new constitution popular among the public. In response to the growing criticism, a constitutional referendum was held in 1850, two years before the required twelve-year referendum. The vote came out 81,500 for and 57,418 against reforming the constitution. That year the Indiana General Assembly passed legislation to provide for the election of 150 delegates, with representation from each county and apportioned according to the district makeup of the state, to be elected to attend a convention to write a new state constitution.

Constitutional Convention

See also: Category: Delegates to the 1851 Indiana constitutional convention

The 150 delegates were elected in the 1850 election and the convention was convened in the Hall of Representatives at the Statehouse in Indianapolis, starting October 7, 1850. The delegation was split with 95 Democrats and 55 Whigs. George Whitfield Carr, who was the Speaker of the House in the last session of the General Assembly, presided over the convention. Other members included Thomas Hendricks, David Wallace, and Alvin P. Hovey.

Both parties adopted a set of proposals they wanted incorporated into the constitution prior to the convention. Whigs wanted all judicial and legislative office at all levels of government publicly elected, expansion of suffrage to all citizens over 21 including blacks, a ban on public debt, minimum funding requirements for schools, requiring the legislature to only enact laws that went into effect statewide (ending private acts), and the lowering of salaries of all public officials. The Democrats adopted their items after the Whigs, and included the same items. Democrats accused the Whigs of stealing their issues to gain more representation at the convention.

The first week was spent organizing the convention, and the first session was convened on December 26, 1850. Once debate focused on the constitution, the primary goal was to find ways to reduce the cost of government and increase its efficiency. The session lasted 127 days, ending February 10, 1851. Topics discussed were election of local officials, sheriffs, commissioners, board members, judges, coroners, auditors, clerks, etc.; expansion of suffrage; biennial legislative sessions, banning special legislation targeting only certain localities, and the impeachment process for local officials. To remedy many of these problems, the constitutions of Illinois and Wisconsin were used as references, their states having already dealt with similar issues. The resulting constitution was Jacksonian, and significantly expanded the democratic principles.

Adoption

The new constitution was written in several different sections. When the constitution was submitted to the public for voting, they could vote on each section, meaning that all, part, or none of the constitution could be approved. Some sections that were approved in the convention were voted down by the public, including a clause allowing universal suffrage regardless of race or sex.

The constitution was submitted to the general public in the election of 1851 and was ratified, went into effect 4th July, 1851, and has since remained the highest state law in Indiana. The sitting elected government was permitted to retain their seats, but had to swear an oath to uphold the new constitution until a new government could be elected.

Clauses

With the anticipated reduction in workload the General Assembly was changed to meet biennially rather than annually. Terms of office were extended for all elected offices, representatives to two years, senators to four, and governors to four years. To prevent the legislature from interfering in local affairs, as had become common, the General Assembly was banned from creating legislation that would not be applied to the entire state.

To remedy the state's suffrage problem, voter rights were granted to any naturalized or native white male citizen who had reached the age of 21. This gave the right to vote to hundreds of thousands of voters who previously had been ineligible to vote.

Women's rights were also greatly expanded in the new constitution. Married women were granted the right to own private property, and also granted the right to jointly own property with her husband.

The most controversial clause in the new constitution was the ban placed on allowing blacks to immigrate to Indiana. It was later struck down by the courts.

The Courts were reorganized and the Supreme Court was made an elective body. Their terms were extended to seven years.

Another clause dealt with the Bank of Indiana. It barred the bank's charter from being extended and put a ban on the creation of another similar bank.

One of the most important changes was the abandonment of the short ballot. More public positions were made electable like the Secretary of State, and Attorney General. These changes were pushed through by the Whig minority in a hope to break the Democratic hold on power.

Education was the focus of several sections of the constitution. The clauses dealt primarily with forcing the state government to adequately fund local schools while providing boards of local residents to manage the funds and the schools. It also created a state superintendent of public instruction and gave the state some authority in setting curriculum. The constitution also officially adopted Indiana University as the state's seminary, guaranteeing it state funding.

Because no divorce clause was included in the original constitution the legislature had had to grant divorces on a case by case basis. This, and other issues were delegated to the courts and clerks in the new constitution.

Amendments

The early criticism of the constitution was its lax voter regulations. From the time of its adoptions until 1917, Indiana was frequently the victim of voter fraud. A 1917 amendment put voter registration rules in place.

The whole of article thirteen, which contained several other restrictions on blacks, was repealed and amended in 1881. The final barrier, banning blacks from joining the militia, was removed in 1963, the same year the Indiana Civil Rights Act was passed into law.

Another problem was the organization of the courts. The Supreme Court became overloaded with cases and an appellate court was created at the turn of the century. During the 1970s a series of amendments were enacted to make the court constitutional and to reform the method of electing Supreme Court Justices. Justices were again made appointed positions, a list of candidates was created by the Indiana Judicial Nominating Commission, narrowed to three finalists and thus submitted to the governor who then chooses one. The Justice could then serve two years before being subjected to a retention election, if retained then the Justice could continue their term for up to ten years. All five of the justices must face a retention vote once every ten years on the ballot of that general election.

During the 1970s it became apparent that the General Assembly was not able to complete all their work in the time allotted by the constitution. An amendment was passed that allowed the General Assembly to meet annually. The long session, which occurred the year after the election, was left the same allowing the body to continue meeting for 61 days, but on the following year the assembly was authorized to meet again for a thirty-day period.

Constitutional decisions

See also: Supreme Court of Indiana § Landmark cases

The state supreme court used the 1816 clause prohibiting slavery in several cases, including Lasselle v. State (1820) and In re Clark (1821).

The clauses banning black immigration immediately came under criticism and was ruled unconstitutional in the Supreme Court case of Smith v. Moody in 1861.

In 1864 Article 13 of Indiana's revised 1851 constitution, which prohibited blacks from moving to Indiana, was declared unconstitutional after the famous case of Freeman v. Robinson (1855).

Current Constitution

Preamble

The changes and the concerns in society can be noted by the comparison of the preambles in the original 1816 constitution, and the current constitution. The preamble to the original 1816 constitution read:

We the Representatives of the people of the Territory of Indiana, in Convention met, at Corydon, on monday the tenth day of June in the year of our Lord eighteen hundred and sixteen, and of the Independence of the United States, the fortieth, having the right of admission into the General Government, as a member of the union, consistent with the constitution of the United States, the ordinance of Congress of one thousand seven hundred and eighty seven, and the law of Congress, entitle "An act to enable the people of the Indiana Territory to form a Constitution and State Government, and for the admission of such state into the union, on an equal footing with the original States" in order to establish Justice, promote the welfare, and secure the blessings of liberty to ourselves and our posterity; do ordain and establish the following constitution or form of Government, and do mutually agree with each other to form ourselves into a free and Independent state, by the name of the State of Indiana.

The preamble of the current constitution reads:

TO THE END, that justice be established, public order maintained, and liberty perpetuated; WE, the People of the State of Indiana, grateful to ALMIGHTY GOD for the free exercise of the right to choose our own form of government, do ordain this Constitution.

Articles

The Constitution consists of a preamble and 16 articles. They are as follows:

4

General provisions

• The entire article 3 is the shortest provision of the entire constitution, having one section consisting of one sentence

  Section 1. The powers of the Government are divided into three separate departments; the Legislative, the Executive including the Administrative, and the Judicial: and no person, charged with official duties under one of these departments, shall exercise any of the functions of another, except as in this Constitution expressly provided.

• Article 5, Section 1, provides that the governor may not serve more than 8 years in any twelve-year period.
• Article 5, Section 8, prohibits anyone holding federal office from being governor.
• Article 7, Section 2, declares the state Supreme Court to have one Chief Justice and not less than four nor more than eight associate justices.
• Article 7, Section 15, provides that the four-year term limit for elective office set forth in article 15, section 2 does not apply to judges and justices.
• Article 9 provides for the state to create and fund "education of the deaf, the mute, and the blind; and for the treatment of the insane" and "institutions for the correction and reformation of juvenile offenders" but provides that counties may "provide farms, as an asylum for those persons who, by reason of age, infirmity, or other misfortune, have claims upon the sympathies and aid of society."
• Article 12, Section 1, declares the militia to be "all persons over the age of seventeen (17) years, except those persons who may be exempted by the laws of the United States or of this state".
• Article 13 currently only has one section, (sections 2 through 4 having been repealed) limiting indebtedness of municipal corporations to two percent of the property tax base except in the event of a war or certain other defined emergencies, if requested by petition of certain property owners in the area.
• Article 15, Section 2, provides for creation by law of offices not defined by the constitution, and where someone is appointed, may be for a term "at the pleasure of the appointing authority" but elected offices may not have a term longer than four years.
• Article 15, Section 7, prohibits making any county less than 400 square miles (1,000 km²) or reducing the size of any existing county which is smaller than this.

Sources

• Bodenhamer, David J. and Randall T. Shepard, eds. The History of Indiana Law (2006) excerpt and text search

See also

• Supreme Court of Indiana
• Indiana Code
• State constitution (United States) for a list of links to state constitution articles

External links

• Original Constitution of 1816
• The original Constitution of 1851
• The Constitution of 1851 as passed
• Text of the present Constitution of Indiana from the Indiana General Assembly