Constitution of Indiana

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The 1816 (superseded) and 1851 Constitutions of the State of Indiana, located in the Indiana Statehouse Rotunda.

There have been two Constitutions of the State of Indiana. The first constitution was created when the Territory of Indiana sent forty-three delegates to a constitutional convention on June 10, 1816 to establish a constitution for the proposed State of Indiana after the United States Congress had agreed to grant statehood. The delegates approved the constitution 33-8. In preparing Indiana's fundamental law they borrowed heavily from existing state constitutions, especially those of Virginia, Ohio, and Kentucky. The original constitution was adopted without being submitted to the people.[1] The current constitution is the Constitution of 1851, with numerous amendments.

Constitution of 1816[edit]

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 the hopes on instituting a constitutional ban on slavery.

Constitutional Convention[edit]

The Constitution Elm died in 1925. This picture was taken shortly thereafter.

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, 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.[2]

The delegates authored and adopted the constitution by a simply majority vote. It was not submitted to the public for ratification.[3]

Summary and features[edit]

Indiana's 1816 constitution was very similar to that of the other states at the time in that 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.[2] 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.[4]

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.[4]

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.[3]

Criticisms and controversies over the 1816 constitution were quick to arise. The constitution did not require secret ballots to be held and granted the legislature power to institute whatever form of balloting they chose. The issue was a political football for many years with factions alleging that the other intended to end the secret ballot.[3] As early as 1820 propositions were made to replace the constitution. Opponents criticized it because it made most government positions filled by appointment. It also only allowed local officials to be removed from office by impeachment through the General Assembly. As political parties developed in the state, they abused the process by removing opponents and preventing the removal of allies from office for political reasons. The process of impeachment was time consuming, and tended to dominate legislative sessions, thus preventing more important matters of general concern from being dealt with. Observers of the time suggested that a different process for removing officials be adopted and the power taken from the legislature.[5]

Advocates for improved public education were unhappy with the 1816 constitution, feeling it gave too much authority to the state. As the state's financial crisis deepened, schools became a low priority in the state's budget. Education advocates sought to give the local level more power over the schools while leaving the state in charge of funding which would be required.[6]

Another cause that led to the replacement of the 1816 constitution was the rapid immigration into the state in the 1840s. The Irish Famine and the European revolutions had led to a large influx of Irish and German immigrants. The 1816 constitution allowed only for US citizens, who had been citizens for five years, to vote or run for office. At that time, obtaining naturalized US citizenship took several years, so Indiana had hundreds of thousands of residents who could not vote because the federal government was slow in granting citizenship which, in the end, often prevented immigrants from participating in the political process for over a decade after their arrival.[7]

Democrats and Whigs had opposing views over the interpretation of the amendment clause of the constitution, which required that the public be consulted by poll every twelve years to decide whether the constitution should be replaced. Democrats believed a convention to revise the constitution could be called at will by the legislature, while Whigs believed any attempt to change the constitution other than once every twelve years was unconstitutional. In early state history when the Whigs were dominant, few serious attempts were made to alter the constitution. Between 1816 and 1849 the public voted five times against replacing or amending the constitution, generally by large margins. The legislature voted against doing so 14 times during the same period.[8]

The most common recurring theme of the attempts to change the constitution was to structurely change the legislature by lengthening terms and decreasing the number of legislative sessions. Another recurring theme was the situation noted above, that government officials, even local ones, could only be removed from office if impeached, and parties in power generally refused to impeach their own members. Calls to remedy this in the constitution were frequently made. A third issue was limiting the power of the legislature and granting more power to local legislative authorities.[5]

In 1846, a referendum to call a convention won by plurality on the ballot. There was general debate about whether a convention could be called, but it was finally decided by the General Assembly that a convention could only be called if a majority of all voters supported the measure.[9]

Slavery issue[edit]

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.

The state supreme court used the 1816 clause prohibiting slavery in several cases, including Lasselle v. State (1820) and In re Clark (1821). 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).[10]

Delegates[edit]

County Name Convention office
Clark Thomas Carr, Sr.
Clark John E. Graham
Clark James Lemen
Clark Jonathan Jennings President
Clark James Scott
Dearborn James Dill
Dearborn Exra Ferris
Dearborn Solomon Manwaring
Franklin James Brownlee
Franklin William E. Eads
Franklin Robert Hanna
Franklin Enoch McCarty
Franklin James Noble
Harrison Davis Floyd
Harrison Daniel C. Lane
Harrison Jeremiah Cox
Harrison Dennis Pennington
Harrison Patrick Shields
Gibson Alexander Devin
Gibson Fredrick Rapp
Gibson David Robb
Gibson James Smith
Jefferons Natheniel Hunt
Jefferson David H. Maxwell
Jefferson Samuel Smock
Jefferson William Hendricks Secretary (not a Delegate)
Knox John Benefiel
Knox John Johnson
Knox William Polke
Knox Benjamin Parke
Knox John Badollet
Perry Charles Polke
Posey Dann Lynn
Switzerland William Cotton
Warrick Daniel Grass
Washington John Depauw
Washington William Graham
Washington William Lowe
Washington Samuel Milroy
Washington Robert McIntrye
Wayne Patrick Beard
Wayne Jeremiah Cox
Wayne Hugh Cull
Wayne Joseph Holman

Constitution of 1851[edit]

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.[11]

Constitutional Convention[edit]

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.[12] 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. Chief Justice Isaac Blackford swore the members in and Secretary of State Charles Test was charged with keeping the record.[13]

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.[14]

The first week was spent organizing the convention, employing a stenographer, and because the State Printer was a delegate, a new printer had to be employed. The Hall of Representatives was too small and the roof leaked, so the convention choose to rent the nearby Masonic Lodge to hold the meeting at a rate of $12 per day. The convention finally relocated to the lodge and the first session was convened there on December 26, 1850. The first two days were spent debating the cost of the lodge which many considered extravagant.[15]

About half of the convention was spent not in debate on the constitution, but rather on politics of the day and other personal matters. Once it 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. It cost the state $88,280.39.[16]

The first topic to be discussed was the need to make local officials publicly elected. They agreed that sheriffs, commissions, board members, judges, coroners, auditors, clerks, and many other offices should no longer be appointed but rather chosen through election. The second topic was the expansion of suffrage. The final issues discussed received less time and included 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.[17]

Adoption[edit]

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.[18]

The constitution was submitted to the general public in the election of 1851 and immediately went into effect and has since remained the highest 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[edit]

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. 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 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.[19] 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.[20]

The most controversial clause in the new constitution was the ban placed on allowing blacks to immigrate to Indiana. The proponents of the ban pushed it as a punishment to the southern states for their treatment of blacks. It was claimed that because the southern states had put blacks into their present condition, that they should be responsible for their welfare.[21]

The Courts were reorganized and the Supreme Court was made an elective body. Their terms were extended to seven 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.[22]

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.[23] 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.[24]

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.[25]

Criticisms[edit]

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 and also granted suffrage to women.

The clauses banning black immigration immediately came under criticism and was ruled unconstitutional in the Supreme Court case of Smith v. Moody in 1861.[26] The whole of article thirteen, which contained several other restrictions on blacks, was repealed by 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.

Current Constitution[edit]

Preamble[edit]

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:

The preamble of the current constitution reads:

Articles[edit]

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

  1. Bill of Rights
  2. Suffrage and Election
  3. Distribution of Powers
  4. Legislative
  5. Executive
  6. Administrative
  7. Judicial
  8. Education
  9. State Institutions
  10. Finance
  11. Corporations
  12. Militia
  13. Indebtedness
  14. Boundaries
  15. Miscellaneous
  16. Amendments

General provisions[edit]

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

References[edit]

  1. ^ Manuscript Constitution, Indiana State Library; Kettleborough (ed.), Constitution Making in Indiana, I, 83-125; Barnhart and Carmony, Indiana, I, 151-160; Dunn, Indiana, I, 295-313.
  2. ^ a b McLauchlan, p. 2
  3. ^ a b c McLauchlan, p. 4
  4. ^ a b McLauchlan, p. 3
  5. ^ a b McLauchlan, p. 6
  6. ^ Dunn, p. 437
  7. ^ Dunn, p. 439
  8. ^ McLauchlan, p. 5
  9. ^ McLauchlan, p. 7
  10. ^ Randall T. Shepard, "For Human Rights: Slave Cases And The Indiana Supreme Court," Traces of Indiana and Midwestern History (2003) 15#3 pp 34-41
  11. ^ McLauchlan, p. 8
  12. ^ McLauchlan, p. 9
  13. ^ Dunn, pp. 441-442
  14. ^ McLauchlan, p. 10
  15. ^ Dunn pp. 442-443
  16. ^ Dunn, p. 442
  17. ^ McLauchlan, p. 11
  18. ^ Dunn, p. 467
  19. ^ Dunn, p. 443
  20. ^ Dunn, p. 457
  21. ^ Dunn, pp. 451-452, 466
  22. ^ Dunn, pp. 445, 447
  23. ^ Dunn, p. 448
  24. ^ Dunn, p. 447
  25. ^ Dunn, p. 474
  26. ^ Dunn, p. 472

Sources[edit]

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