A Citizen's Guide to Indiana

Masson's Blog

Road Funding Bill Passes Out of Committee

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The Associated Press has a story on HB 1001 introduced by Rep. Soliday which was heard by the House Roads and Transportation Committee and passed by a vote of 8 to 5 as amended. I don’t know what the committee amendment said. The story says that it would raise additional road funding by increasing the State’s cigarette tax by a dollar per pack and raise the state’s gas tax from 18 cents per gallon to 22 cents per gallon. It also gives local governments the discretion to raise certain taxes to fund local projects.

This is at odds with Gov. Pence’s plan which is to come up with $480 million through a combination of borrowing and spending a chunk of the State’s reserves.

Gov. Pence’s ideological commitment to not raise taxes is misplaced here — particularly if one is committed to a use tax model of paying for roads. I’m not necessarily convinced it’s the best model, but we like the gas tax because it’s a proxy for road use. If you use the road more, you pay more in taxes to support the road. It definitely has an appeal. (I think that sound infrastructure has indirect economic benefits to people other than those who are actually on the roads — but that’s probably a battle for a different post.)

We are not currently keeping up with the wear and tear on our roads. In other words, we are using more of our roads than we are paying for. So, it makes sense to raise taxes to a level that matches our use of the roads. What we pay in taxes for our roads is chump change compared to the value we get out of having good roads. With gas prices low, this is the time to raise the gas tax. Gas prices are down a dollar or more from levels we found sustainable. As variable as gas prices are, four cents is not going to be noticeable to most Hoosiers. (I’m not a fan of smoking and, personally, find the habit disagreeable, but the cigarette tax strikes me as an odd choice for funding roads. Just raise gas taxes or something road-related to wherever they need to be to sustain road maintenance.)

SB 267 – Employers and Expungement

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Sen. Greg Taylor has introduced SB 267 which has passed out of the Senate Committee on Corrections and Criminal Law. When the General Assembly modified the expungement law, it limited an employer’s ability to question an employee about the employee’s prior criminal history on an application such that the application could be phrased only in terms “that exclude expunged convictions or arrests, such as: ‘Have you ever been arrested for or convicted of a 7 crime that has not been expunged by a court?'” This new legislation would expand that limitation to interview questions as well.

The legislation also would impose a penalty on a violation by making it a Class C infraction and Class B infraction for multiple violations.

PERF, TRF, and Israel

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Speaker Bosma has introduced HB 1378 which requires the public retirement system (the Indiana State Teacher’s Retirement Fund or the Public Employee’s Retirement Fund) to divest from businesses that engage in action or inaction to boycott, divest from, or sanction Israel. It is being heard in the House Labor Committee.

There is a lengthy “legislative findings” section which, in my mind, is always a red flag. The law (generally)  tells you who is required or permitted to do what to whom under what circumstances. Making a policy argument about it in the Code suggests that the value of whatever you are permitting or mandating does not speak for itself. There are a lot of words in the findings, but what particularly stood out are the notions that Israel is uniquely good among Middle East nations and college students are campaigning to boycott against Israel, specifically that efforts to boycott Israel “increasingly occur on college and university campuses nationwide, leading to a climate of intimidation, fear, and violence on campuses in Indiana.”

“Action or inaction to boycott, divest from, or sanction Israel” is defined very broadly as “action or inaction that: furthers;  coordinates with; or acquiesces in; an effort by another person to penalize, inflict economic harm on, or otherwise limit commercial relations with the Jewish state of Israel or businesses that are based in the Jewish state of Israel or territories controlled by the Jewish state of Israel.”

It requires the board of trustees of the Indiana Public Retirement System, by January 31, 2017, to develop a list of restricted businesses, businesses that engages in activities to boycott, divest from, or sanction Israel. If the public retirement system has investments in businesses on the list, INPRS will send notice to the business which will then have 90 days to cease the offending activities. It is prohibited from investing in such businesses. It provides immunity against claims based on acts or omissions under the law.

Generally speaking, I think our foreign policy is hindered by thinking of Israel as a special snowflake. Often, I think our interests are aligned with theirs, but sometimes not, and I think our relationship to Israel should ebb and flow based on how closely aligned our interests are — as with any other foreign country. Secondly, that’s much more of a federal concern, and it’s a little bizarre when states get involved in targeting particular countries. (For example, I feel a little weird when, due to State law, I tell some local contractor that to do business with the county, they have to certify that they don’t do $10 million worth of business in Iran.) Finally, the bit about college campuses is a little weird. Which Indiana campus has become violent over this issue?

 

SB 146: Tort Claim Protection for “Approved Postsecondary Educational Institutions”

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Sen. Charbonneou’s SB 146 extending tort claim protection to certain postsecondary educational institutions has passed through second reading and is eligible for a vote on the Senate floor. It extends tort claim protection to “approved postsecondary educational institutions” as defined under IC 21-7-13-6(a)(1).

This means: “1) A postsecondary educational institution that operates inIndiana and:(A) provides an organized two (2) year or longer program ofcollegiate grade directly creditable toward a baccalaureatedegree;(B) is either operated by the state or operated nonprofit; and(C) is accredited by a recognized regional accrediting agency, including: [list of numerous Indiana colleges] or is accredited by the board for proprietary education underIC 21-18.5-6 or an accrediting agency recognized by theUnited States Department of Education.”

To be eligible for the protection the institution also has to share data with the Commission for Higher Education under IC 21-12-12-1.

I wish I had a list of examples of institutions this is supposed to help. But, it looks like it’s helping out private, non-government colleges which strikes me as inappropriate for application of the Indiana Tort Claims Act. The Indiana Tort Claims Act is a provision that continues the old notion of sovereign immunity. Sovereign immunity was based on the idea that the sovereign could do no wrong and insulated him from application of the civil laws. That idea fell into disfavor in so broad a form and, so, has been implemented in a much more limited form under ITCA. Still, it means that the government is immune from civil suits that might well result in big judgments against private citizens under similar circumstances. One of the rationales for the immunity is to protect the public coffers — protect taxpayers from burdensome and unpredictable tax assessments resulting from litigation over government functions that are necessary, even if sometimes they result in injury to private citizens.

Extending this protection to private institutions strikes me as peculiar. I’d love to know the rationale for this.

SB 195: Ownership of Wild Animals

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Sen. Crider’s SB 195 concerning ownership of wild animals has passed out of committee. Current law provides that, with certain exceptions, “all wild animals are the property of the people of Indiana.” Under current law, one exception is for those “legally owned” under a license or permit; another is for those “being held in captivity” under  a license or permit. This legislation removes the “held in captivity” as an exception.

The bill then goes on to declare that that article of the code (providing, among other things that wild animals belong to the People) does not apply to “legally owned captive bred cervidae.” Cervidae primarily refers to deer and includes elk, moose, and reindeer.

I think, but would welcome correction, that this is intended to help people who run canned hunting operations and want to get DNR out of the way.

HB 1143 – Garnishment Games

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Rep. Richard Hamm has introduced HB 1143 concerning garnishments which encourages judgment debtors to stiff their creditors by briefly leaving their employment before returning again. It provides that if a judgment creditor is garnishing a debtor’s wages with a particular employer and if the debtor leaves that employment and returns again, the judgment creditor must “obtain a new judgment against the judgment debtor” before the employer is required to resume garnishments.

First of all, aside from some arcane maneuvers that don’t apply here, once you get a judgment, there is no getting a new judgment. A cause of action is reduced to judgment. After that, the cause of action is gone and only the judgment remains. There is nothing to sue upon to get a new judgment. So, on its face, it looks like the judgment creditor can get a garnishment if the creditor gets a judgment on a different debt but can’t get a garnishment based on the old judgment. Perhaps what is intended is that the creditor has to go back to court to get a new order of garnishment. But that’s not what the bill language says (among other things, it’s a new judgment against the judgment debtor – not a new order against the garnishee defendant”)

Either way, it discourages satisfaction of debts that are due and owing as a matter of law, and it encourages gamesmanship by debtors. Do not recommend.

Measure of Damages for Undocumented Worker

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The IBJ ran an interesting AP story on the subject of the measure of damages for an injured Mexican worker who was in the United States illegally. When you are injured through the negligence of someone else, the goal is to provide compensatory damages (money) in an amount that “makes you whole.” In other words, try to give you money for what you lost through the other person’s negligence. Future earnings is one element of those compensatory damages. The question in this case is whether it is appropriate to measure those future earnings in terms of what the man could make if he remained in and worked in the U.S. The basic measure of damages for impairment of lost earning capacity is the difference between the amount the plaintiff was capable of earning before the injury and the amount which he was capable of earning thereafter.

I can see this going either way. Companies already have an incentive to look the other way in terms of a worker’s legal status. They can often pay these folks less. Ruling that they can also pay less for a workplace injury if the person happens to be here illegally would compound the incentive. (It also raises a question about whether the company should have to pay more if the person comes from a place with more generous compensation.)

On the other hand, it would be difficult for the Courts to permit a presumption that damages should be based on the idea that a person will continue to engage in and profit from illegal activity. If you negligently injure a drug dealer, should there lost income be based on the idea that they would have continued their lucrative meth enterprise?

The Court of Appeals may be able to avoid addressing this one head on because the plaintiff in question has, since the injury, apparently become married to a U.S. citizen and is able to be here legally now.

HB 1019: Law Enforcement Recordings

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Rep. Mahan has introduced HB 1019 which restricts public access to law enforcement recordings. It defines “law enforcement activity” as “any instance . . . in which a law enforcement officer is enforcing the law” (specifically excluding administrative activities such as completing paperwork). “Law enforcement recording” is defined as audio or visual recordings of such activities recorded by a device provided to the officer for use in the officer’s official duties.

It specifies that, in order to meet the “reasonable particularity” requirement of the Access to Public Records Act (APRA), the request has to include the date and approximate time of the recording, the location, and the name of at least one person other than the officer who was directly involved in the law enforcement activity. It states that the recording is not an investigatory record — (investigatory records being among the class of records that may be withheld at the discretion of the responding agency).

Instead of being discretionarily withheld under the investigatory record section of the APRA, it creates a new exception whereby law enforcement recordings in general may be withheld. It creates an exception for people in the recording (and people like their attorneys or personal representatives) who have a right to inspect (but not copy) the recording twice. The public agency is required to obscure information related to confidential informants, undercover law enforcement officers, and any other information APRA mandates as exclusions from the public disclosure.

Additionally, it creates a court process by which a person requesting a record can overcome the agency’s discretion to withhold the recordings by petitioning a court for their release. Such a petition must show the court that release is in the public interest, does not create a risk of substantial harm to an individual or the general public, and will not have a prejudicial effect on ongoing court proceedings. The petitioner is not entitled to attorney’s fees for bringing such a request. If disclosure is required, the public agency would be required to obscure depictions of death or serious injury, nudity, individuals under 18 years old, victims of crimes, undercover officers, confidential informants, and personal medical information.

In general, recordings would be retained for not less than 180 days, but if certain events took place (such as a request by a person depicted in the video), the retention period would increase to two years or longer. If I’m reading the language correctly, it also — in the case of law enforcement recordings — dispenses with the need for a requestor who is depicted in the recording to go through the public access counselor before being entitled to attorney’s fees if they prevail in a challenge to nondisclosure. It also exempts law enforcement recordings from the criminal statute which prohibits placement of surveillance equipment on private property without the consent of the owner.

I’m not sure if this is the answer, but I respect what the author is trying to do. I think, in general, having cameras present in law enforcement encounters is beneficial. More often than not (but certainly not always) the recordings back up an officer’s account of an encounter. Having a recording going — even if it’s never requested or seen — probably serves a reminder to the officer to maintain his or her professionalism. But, having a vast database to maintain and sift through in service of the public records laws creates a significant disincentive to acquiring and implementing such cameras for law enforcement. It also raises significant questions about the rights of citizens who never consented to be recorded.

Bicentennial Installment 2: Indiana as a Young State

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In our last installment, the anti-slave faction of Jonathan Jennings had prevailed over the pro-slavery faction of William Henry Harrison, the delegates to the Constitutional Convention had hammered out a Constitution, and President Madison signed the congressional resolution admitting Indiana as one of the United States.

I won’t hold myself too it in any strict way, but my general notion is to cover stretches of about 16 years with these installments. During the period from 1816-1832, we had the following governors:

1816-1832
Governors:
1817 – 1822 Jonathan Jennings
1822 – 1822 Ratliff Boon
1822 – 1825 William Hendricks
1825 – 1831 James B. Ray

The National Scene

It’s probably useful to have a bit of national context as well. On the national level, the Presidents of the United States during this period:
1817 – 1825 James Monroe
1825 – 1829 John Q. Adams
1829 – 1837 Andrew Jackson

Monroe’s presidency saw an expansion of the country as Florida was acquired and America acquired some joint interests with Britain in the Pacific Northwest. Monroe’s secretary of state (and future President), John Quincy Adams developed the Monroe doctrine which asserted American supremacy in the western hemisphere. The Panic of 1819 caused significant economic distress, and the admission of Missouri highlighted tensions between the slave holding and non-slaveholding states, leading to the Missouri Compromise where slaveholding Missouri could not be admitted until Maine was admitted at the same time; maintaining the status quo in the United States Senate between slaveholding and non-slaveholding states. John Quincy Adams was elected President in a hotly contested election that was ultimately decided in the House of Representatives. One of the candidates, Henry Clay, threw his support to Adams, giving him the Presidency. Andrew Jackson, never an even-tempered man, felt cheated and held a grudge. Adams embraced the American System which imposed high tariffs to fund internal improvements such as road-building, and a national bank to encourage productive enterprise and form a national currency. In the 1828 rematch, Jackson beat Adams in a landslide and became President. His Presidency featured opposition to the national bank and aggressive Indian removal policies.

Expansion into the frontier was very much a part of the national dynamic in this time as well as that of the state. Down by the Ohio river, settlement was coming up from the southern states. In the middle of the state, settlers tended to come from the mid-Atlantic states, and in the north, Yankees were more prevalent. In 1816, Thomas Lincoln and his famous son, Abraham, moved across the Ohio River from Kentucky to Indiana. One of the main features he saw in Indiana was a more reliable land survey system. In Kentucky, he had lost property in title disputes. (As I’ve argued before, there is nothing naturally inalienable about property rights. That’s a function of law. The distinction between Kentucky and Indiana at the time is an illustration.) The ability to securely own property was a major concern in a young country. Settlers would often acquire a tract of land and proceed to clear it. They would build a lean-to that gave them basic shelter, then they would clear some land in order to get crops planted. After some time, they would build a log cabin and try to generate a surplus they could sell. Typically the flow of trade would follow the river, heading south and west toward New Orleans. From there, crops could be transported by ship to the east. With the exception of light and/or valuable goods that were worth transporting up stream, finished goods would flow from the east to the west. Roads would be an early concern.

Jonathan Jennings

Indiana’s first Governor was Jonathan Jennings who loomed large in the run-up to statehood and the writing of the Indiana Constitution. His opponent in Indiana’s first state election was Thomas Posey who had been Indiana’s last territorial governor. Posey thought Indiana’s statehood was premature and suffered from health problems, so the election was not much of a contest. Jennings won with about 57% of the vote. “Jennings’s agenda called for establishing court proceedings to secure justice, organizing a state-funded educational systems, creating a state banking system, preventing unlawful seizure and enslavement of free blacks, organizing a state library, and planning internal improvements.”

Jennings proposed a free, state-funded education system as provided for in the state constitution, but — and stop me if you’ve heard this one before — Hoosiers were not eager to pay taxes to fund public schools. Infrastructure improvements were fairly ambitious but the State’s population was not large enough to provide it with tax revenue to build the roads and canals it needed to attract more population. State government and the state’s banks became heavily intertwined. In 1817, the territorially chartered Bank of Vincennes became the state chartered First State Bank of Indiana. The other major banking institution was the Farmers and Mechanics Bank of Madison, founded in 1814. The Panic of 1819 made Indiana’s challenging financial situation even tougher. The First State Bank’s position became so precarious that the its bills were not accepted from federal land offices and, by 1822, the bank had failed.

In 1818, Jennings was appointed as a federal commissioner to negotiate the Treaty of State Mary’s with Potawatomi, Wea, Miami, and Delaware who lived in northern and central Indiana. This would open up those areas for Hoosier settlers, but, unfortunately for Jennings, the state constitution prohibited the governor from holding a federal government position. Lt. Governor Christopher Harrison claimed that Jennings had forfeited his position. The General Assembly investigated, but Jennings seems to have successfully stonewalled them. Disgruntled, Harrison resigned as lieutenant governor and, shortly thereafter, ran against Jennings in Jennings second election campaign. (Governors served 3 year terms and were prohibited from serving more than 6 years in a 9 year period.) In 1820, Jennings got 11,000 votes to Harrison’s 2,000. (By contrast, the first election had only about 8,000 total votes cast. Indiana was growing fairly rapidly.) By this time, however, Jennings was running into personal financial trouble. Dependent on an income from political office and barred for running for re-election for governor, Jennings decided to run for Congress. In 1823, shortly before his term was set to end, Jennings became a candidate for Congress. Indiana’s Congressional representative, William Hendricks, resigned to campaign for Congress. A special election was held to fill the remainder of Hendricks’ term. Jennings ran both as a candidate to fill the remainder of Hendricks’ term and as a regular candidate for the newly created Second District. He won both and resigned the remainder of his second term as governor. The Lieutenant Governor, Ratliff Boon, became governor and served for 84 days.

Boon’s only act of consequence during his short time as governor was to conduct a census of the area purchased by the Treaty of St. Mary’s and make recommendations for the creation of counties in the region. His proposal was adopted by the General Assembly, which organized county governments and created three seats in the assembly to provide representation to the subjects of the census.

William Hendricks

William Hendricks ran unopposed for Governor and served from 1822-1825 — the last Governor, incidentally, to serve in Corydon. Hendricks had been a classmate of Jennings back in Pennsylvania where they grew up. (Hendricks was also the uncle of Thomas Hendricks who would go on to become governor and then Vice President in the mid-to-late 1800s). William Hendricks arrived in Indiana, by way of Ohio where he studied law in Cincinnati and practiced with his brother before moving to Indiana and setting up an anti-slavery printing press in Madison, Indiana (that press would also be used to print the first version of the Indiana Code). Within two or three years of moving to Indiana, he was well enough known that he was appointed secretary of the state’s Constitutional Convention in 1816. He succeeded his friend, Jennings, as Indiana’s Congressman (defeating Posey). While in Congress, he was a champion of internal improvements, supporting — among other things — the National Road.

When he took office, the state was in a bad financial situation, stemming from the Panic of 1819; the challenges of a new, lightly populated state government; and the laudable, but expensive, ambitions of such a state. Public lands were sold to stabilize the financial situation, and government accounts were moved to the Second Bank of the United States — Indiana’s bank having gone belly up. The state’s finances simply wouldn’t permit the ambitious internal improvement programs he would have preferred; so his focus was, of necessity, more limited in scope. There was apparently legislation passed during this time that required Hoosiers to spend an allotted amount of time contributing to the improvement of the state’s roads. (I don’t have the details and would love to see the text of that particular law.) The public school system (the first state funded system in the nation) began to take shape during the Hendricks’ administration. Each township was granted land on which a public school could be established. Additionally, construction of the State Seminary, which would become Indiana University, was constructed.

In 1824, an incident known as the “Fall Creek Massacre” took place. The relations between white Hoosiers and Native Americans were not good, but they were getting better. The bad news is that white people were still killing Native Americans. The good news is that they could no longer do so with impunity. It was the first documented case where white Americans were convicted, sentenced to capital punishment, and executed for the murder of Native Americans. Nine Native Americans (two men, three women, and four children) were murdered by seven settlers in Madison, Indiana. The massacre seems to have been borne of a lot of liquor, some suspicions with respect to stolen horses, and a great deal of prejudice. Three of the men — James Hudson, Andrew Sawyer, and John Bridge, Sr. —  were executed by hanging. The fourth man convicted of the murders, John Bridge Jr., the 18 year old son of Bridge, Sr., was pardoned in somewhat dramatic fashion:

On June 3, 1825, another large crowd, including numerous Native Americans, gathered for the executions, which were conducted one at a time. Sawyer was hanged first, followed by the execution of Bridge, Sr. His eighteen-year-old son, John Bridge Jr., witnessed both hangings before being led to the gallows and fitted with a noose and hood. At that point, Governor Ray, who had arrived on horseback, moved through the crowd and stopped the execution. After presenting the pinioned teenage prisoner with a written pardon, the governor announced, “Here is your pardon. Go sir, and sin no more.”[56] The young prisoner was immediately set free.[57] A Seneca chief in attendance at the hangings and the dramatic pardon remarked, “We are satisfied.”[58]

Also during Hendricks’ tenure, Indiana’s laws were codified as the Indiana Code, and Hendricks approved a measure that would move the capital from Corydon to Indianapolis.

These days, having the capitol in Indianapolis makes a certain amount of sense. It’s a big city in the middle of the state. However, at the time, there was pressure to keep the capitol in the South. That’s where most of the population was. Marion County was on the edge of the frontier. The site which would become Indianapolis was opened up by the 1818 Treaty of St. Mary’s which created “The New Purchase.” In the early 1820s, the legislature appointed a committee which selected the site, and a former assistant of Washington D.C.’s Pierre L’Enfant by the name of Alexander Ralston surveyed and designed the layout of the city’s “Mile Square” (bounded by North, East, South, and West streets). On January 1, 1825, Indianapolis became the seat of government, and the General Assembly first met in session in Indianapolis on January 10, 1825.

James Ray

On February 14, 1825, Hendricks resigned his position as governor to become U.S. Senator, having been elected to that position by the Indiana Senate. Ratliff Boon almost got to add to his 84 days as governor, but he had resigned as Lt. Governor the year before. The Lt. Governor position was vacant and so the governorship devolved to the president pro tempore of the Senate, James B. Ray. He was young, 31 years old, but managed to prove that he was old enough to take office (minimum age 30). During Ray’s tenure, the state was enjoying rapid growth (45%) and a period of relative prosperity. Party politics were rising, but Ray managed to stay out of them and, in fact, use his independence as a selling point when he ran for a full three year term later in 1825. He defeated Supreme Court Justice, Isaac Blackford, on a platform of party independence and that old favorite, internal improvements.

Ray’s view on internal improvements was interesting at that time as he became opposed to canals and championed a relative newcomer — railroads. Canals were all the rage. Ohio had recently had economic success with its canal projects and, of course, the grandaddy of them all, the Erie Canal in New York was an economic juggernaut. Railroads, by contrast, were unproven and their economic value not evident. Ray asked the General Assembly to create a committee explore the construction of new railroads. The committee returned with a finding that Ray’s plans to turn Indianapolis into a railroad hub were “utopian” and “mad and impractical.” No, said the General Assembly committee in its infinite wisdom, canals are where it’s at. (I’m paraphrasing). Design plans for the Wabash & Erie Canal were approved during this period, but Ray sort of sandbagged its progress, delaying construction where he could. He managed to leverage his position to facilitate construction of the state’s first railroad,a shortline from Shelbyville to Indianapolis. That railroad would later be expanded to connect Madison and Jeffersonville.

Ray also worked for the construction of the Michigan Road, the state’s first “super highway,” running from Madison to Michigan City. One of the things that needed to be done for the road was acquisition of land in northern Indiana from the Potawatomi  Indians. The road would later be part of the Potawatomi Trail of Death when they were forcibly removed from the state in 1838. President John Quincy Adams appointed Ray (along with John Tipton and Lewis Cass) to negotiate the land acquisition treaty. This led to a replay of the situation faced by Jennings where opponents tried to oust him from the governorship for allegedly violating the constitutional prohibition against holding a federal government position. By a vote of 31 – 27, he narrowly avoided impeachment proceedings.

Additionally, Ray advocated that the Indiana State Seminary be elevated to a college — one of the steps on the way to its becoming Indiana University. He also attempted a revision to model Indiana’s laws after the Napoleonic Code, similar to Louisiana, but this never came to fruition.

During Ray’s run for a second term, he was not quite as successful in avoiding the growing force of party politics. He purported to accept the overtures of the new Jacksonians under the condition that his alliance with them remain secret. However, shortly after this, he told a pro-Henry Clay newspaper that the Jacksonian Democrats were outrageous and violent. The Jacksonians fielded a candidate but Ray managed to win in a three way race, defeating Democrat Harbin Moore and Whig Israel Branby.

Ray’s second term ended poorly. The legislature wanted certain Supreme Court Justices reappointed. Ray delayed the reappointments, seeking to leverage them in exchange for appointment by the legislature to the U.S. Senate. (Contrary to the modern day reimagining of the virtues of the old U.S. Senate appointment process by those such as state senator James Smith, these were the kinds of shenanigans you got which led to the 17th Amendment.) Ray’s leverage attempt was unsuccessful. His double dealings with the political parties and his insane ideas about railroads led to his defeat. (Former governor Hendricks was re-elected instead.) Ray’s return to private life in 1832 was ignominious. His business ventures were unsuccessful, he had few friends and he was apparently believed to be mentally deranged. Ultimately, he died in Cincinnati of cholera in 1848 at the age of 54.

SB 66 – Extra Special Constitutional Rights

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I was trying to think of a way to work “double secret probation” into the title but couldn’t come up with anything. Sen. Young has introduced SB 66 which defines certain provisions (basically the ones concerning religion, assembly, and bearing arms) of the Indiana Constitution as “fundamental rights” and then imposes a strict scrutiny test as to whether government action infringes upon them.

This is going to be a little long, but space — like talk — is cheap here on my little blog, so I’m going to paste the Indiana Constitution’s Bill of Rights and put in bold Sen. Young’s fundamental rights and, by contrast, we’ll be able to see which rights are not regarded as fundamental. (For example, the right to be free of unreasonable search and seizure, the right to bail, not drawing money from the treasury for the benefit of a religious institution, a debtor’s right to “wholesome laws” protect his ability to enjoy the necessary comforts of life, and a penal code based on reformation rather than vindictive justice.)

Also, Hoosiers generally could stand to look at the Indiana Bill of Rights from time to time. There is a lot of cool stuff in there:

Section 1. WE DECLARE, That all people are created equal; that they are endowed by their CREATOR with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness; that all power is inherent in the people; and that all free governments are, and of right ought to be, founded on their authority, and instituted for their peace, safety, and well-being. For the advancement of these ends, the people have, at all times, an indefeasible right to alter and reform their government.

Section 2. All people shall be secured in the natural right to worship ALMIGHTY GOD, according to the dictates of their own consciences.

Section 3. No law shall, in any case whatever, control the free exercise and enjoyment of religious opinions, or interfere with the rights of conscience.

Section 4. No preference shall be given, by law, to any creed, religious society, or mode of worship; and no person shall be compelled to attend, erect, or support, any place of worship, or to maintain any ministry, against his consent.

Section 5. No religious test shall be required, as a qualification for any office of trust or profit.

Section 6. No money shall be drawn from the treasury, for the benefit of any religious or theological institution.

Section 7. No person shall be rendered incompetent as a witness, in consequence of his opinions on matters of religion.

Section 8. The mode of administering an oath or affirmation, shall be such as may be most consistent with, and binding upon, the conscience of the person, to whom such oath or affirmation may be administered.

Section 9. No law shall be passed, restraining the free interchange of thought and opinion, or restricting the right to speak, write, or print, freely, on any subject whatever: but for the abuse of that right, every person shall be responsible.

Section 10. In all prosecutions for libel, the truth of the matters alleged to be libellous, may be given in justification.

Section 11. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search or seizure, shall not be violated; and no warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or thing to be seized.

Section 12. All courts shall be open; and every person, for injury done to him in his person, property, or reputation, shall have remedy by due course of law. Justice shall be administered freely, and without purchase; completely, and without denial; speedily, and without delay.

Section 13. (a) In all criminal prosecutions, the accused shall have the right to a public trial, by an impartial jury, in the county in which the offense shall have been committed; to be heard by himself and counsel; to demand the nature and cause of the accusation against him, and to have a copy thereof; to meet the witnesses face to face, and to have compulsory process for obtaining witnesses in his favor.
(b) Victims of crime, as defined by law, shall have the right to be treated with fairness, dignity, and respect throughout the criminal justice process; and, as defined by law, to be informed of and present during public hearings and to confer with the prosecution, to the extent that exercising these rights does not infringe upon the constitutional rights of the accused.

Section 14. No person shall be put in jeopardy twice for the same offense. No person, in any criminal prosecution, shall be compelled to testify against himself.

Section 15. No person arrested, or confined in jail, shall be treated with unnecessary rigor.

Section 16. Excessive bail shall not be required. Excessive fines shall not be imposed. Cruel and unusual punishments shall not be inflicted. All penalties shall be proportioned to the nature
of the offense.

Section 17. Offenses, other than murder or treason, shall be bailable by sufficient sureties. Murder or treason shall not be bailable, when the proof is evident, or the presumption strong.

Section 18. The penal code shall be founded on the principles of reformation, and not of vindictive justice.

Section 19. In all criminal cases whatever, the jury shall have the right to determine the law and the facts.

Section 20. In all civil cases, the right of trial by jury shall remain inviolate.

Section 21. No person’s particular services shall be demanded, without just compensation. No person’s property shall be taken by law, without just compensation; nor, except in case of the State, without such compensation first assessed and tendered.

Section 22. The privilege of the debtor to enjoy the necessary comforts of life, shall be recognized by wholesome laws, exempting a reasonable amount of property from seizure or sale, for the payment of any debt or liability hereafter contracted: and there shall be no imprisonment for debt, except in case of fraud.

Section 23. The General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms, shall not equally belong to all citizens.

Section 24. No ex post facto law, or law impairing the obligation of contracts, shall ever be passed.

Section 25. No law shall be passed, the taking effect of which shall be made to depend upon any authority, except as provided in this Constitution.

Section 26. The operation of the laws shall never be suspended, except by the authority of the General Assembly.

Section 27. The privilege of the writ of habeas corpus shall not be suspended, except in case of rebellion or invasion; and then, only if the public safety demand it.

Section 28. Treason against the State shall consist only in levying war against it, and in giving aid and comfort to its enemies.

Section 29. No person shall be convicted of treason, except on the testimony of two witnesses to the same overt act, or upon his confession in open court.

Section 30. No conviction shall work corruption of blood, or forfeiture of estate.

Section 31. No law shall restrain any of the inhabitants of the State from assembling together in a peaceable manner, to consult for their common good; nor from instructing their representatives; nor from applying to the General Assembly for redress of grievances.

Section 32. The people shall have a right to bear arms, for the defense of themselves and the State.

Section 33. The military shall be kept in strict subordination to the civil power.

Section 34. No soldier shall, in time of peace, be quartered in any house, without the consent of the owner; nor, in time of war, but in a manner to be prescribed by law.

Section 35. The General Assembly shall not grant any title of nobility, nor confer hereditary distinctions.

Section 36. Emigration from the State shall not be prohibited.

Section 37. There shall be neither slavery, nor involuntary servitude, within the State, otherwise than for the punishment of crimes, whereof the party shall have been duly convicted.

Maybe someone could also introduce a joint resolution to amend the Constitution to put those fundamental rights in allcaps or bold or something.