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.
That is actually an excellent Bill of Rights.
I’m not a lawyer, but it seems to me to be problematic to make some rights more fundamental than others. Isn’t it rather Orwellian to say that all rights are equal, but some rights are more equal than other rights? This is particularly true in light of last year’s RFRA disaster.
It’s an excellent Bill of Rights, too bad we can’t get the Indiana Supreme Court from treating them all equally and foisting their view of extra special on us.
I’m uncomfortable with the way it could actually come out. Do you have a due process case? We will slough over you, but the guy with the 1st Amendment issue we will special consideration to him. Does the majority of the legislature get to establish an agenda that will make your rights more valuable than mine? I hope not.
Luckily this bill will go no where.. although repealing RFRA might be their easiest answer to this BS – but then they’d have to admit what it was all about..
It already had a hearing scheduled Jan. 20 in Senate Judiciary…
Probably more telling the rights the Senator decided are not to be considered fundamental.
There are a few legislators who I think could fix RFRA. Senator Young isn’t one of them.
Maybe Indiana could mandate the use of the blink tag in online reproductions of the Indiana Constitution for these extra special rights could flash before our eyes. (Sorry, web developer joke.)
The true effect of RFRA has been to accelerate the implementation of gay rights legislation in Indiana. Good job by Miller/Clark/Smith on that front.
Very good point, Joe. I wonder about the ability of a legislature to “declare” certain provisions as “fundamental.” The Indiana Constitution was drafted in a time and space 159 years ago, reflecting the intent of the drafters. I do not see how the legislature can usurp the role of the courts to construe and enforce constitutional provisions. It could be, however, that other legislatures around the country have tried this trick. I find it hard to imagine that an Indiana legislator could come up with this idea by himself.
First, I would like to thank the author of this article for posting the Indiana bill of rights, to provide me with the convenient opportunity to review the rights provided for by my own state and that you can easily see which sections are being affected.
Second I would like to point out that the particular rights in question have been overlooked or misinterpreted by the judicial branch in recent years. The purpose of the judicial branch is not to create nor define law, but only to interpret law as it is written. In recent years it has been determined by many judicial authorities that my right to free exercise of religion should be imposed upon by another’s right to not be discriminated against (when in fact these rights are equal). This is why it is in fact the job of the legislature to define such rights in more specific ways, so as to prevent misinterpretation by the judicial authorities within our state. This is the purpose of this law. While I understand that in some cases a person may of his own accord disregard his right to the free exercise of religion, this does not make this right any less fundamental (or “natural” as the wording I prefer), and thus inalienable. In recent years, the right of assembly and right to bear arms have also had either judicial misinterpretation, or the threat of infringement by executive authority (executive branch’s purpose – executing, or enforcing the law, not interpreting, not altering). Thus again, it is the actual job of the legislature to write the law in easily interpreted and executable ways, so as to prevent the other branches from overstepping their authority.
Myself, I would like the think that we are all in agreement of point 1 and 2, though the idea of having checks and balances is undesirable when it prevents oneself from utilizing one branch to override another, as it has the affect of forcing one to change the law through the law makers instead of through the interpretators of law. However, it is the legislature and only the legislature which provides our citizens with the ability to influence the creation of law. Recently, it has been quite a trendy thing to use the judiciary to create precedent, and upon the creation of precedent there is no way to overturn it, except by better defining the law. Can we agree to this much at least, without regard to one’s own personal opinion of the law?
Three, I think we should talk about the reason this article was written.
I think that very few people in Indiana actually believe in overriding our right to bear arms. In Indiana it is well known that most gun crime is either self-inflicted, or inflicted by those who have not obtained their guns legally (for which it is the executive’s job to enforce the law, not to alter it by alienating our right to legally obtain them). Unfortunately, the right preventing illegal search and seizure protects those who possess illegal firearms, and indeed, if the mayor decided to raid the houses of gang members who possess illegal firearms, there is sufficient precedent that even if the illegal guns were found (in an unlawful search), the state would have violated the right of search and seizure, thus preventing criminal proceedings and also opening the state to lawsuit for this violation. While I use the word unfortunately, I would like to point out that this right is also important, and in fact should not be overturned, even though this allows criminals to possess illegal firearms.
Similarly, I think very few people have a problem with the right of the people to peaceable assembly. So reinforcing these rights with more easily interpretable wording is not problematic to at least the majority of us.
So we come to the crux of the issue, the right to free exercise of religion. Can we all agree that this is in fact what this article sees as problematic?
Indeed, the right to the *free exercise* of religion is a problematic issue, at least for those who would like to *limit* that exercise, perhaps limit it to the home, the church, but definitely to keep it away from the public sphere. Unfortunately, the public sphere is included in the right to free exercise of religion (and if this wording is problematic, it should be changed in the legislature, not in the judicial branch). However, in recent years, the judicial branch is precisely what was used to change the interpretation of the law, thus the reason for defining this right more clearly. Perhaps you disagree with the way it was worded in sb66. Although in this article, you did not mention any problem with the wording, the problem you seem to have is that it did not further define *each* right provided for by the indiana bill of rights. Had this been the case, the bill itself would’ve been much larger and seemed to be changing quite a bit more of the law than it actually is (it actually changes very little). So when my friends on social media told me that this, like the previous rfra bill was an anti-gay bill (I’m speaking of headlines, this article has not slandered this bill in this way), when I found this bill to be 2,000 pages long, I’m more prone to simply take their word for it. Myself, I thank God and the state of Indiana for writing such concise and to the point laws, and that we have a nice looking website which makes it easy for me to download this law, even from my cellular phone. I think most people will agree that concise laws are better, as they can be more easily scrutinized by the public. Unfortunately, conciseness is not my forte, and I feel my post has been long enough already. So I would like to open up dialogue with whoever would like to respond with specific complaints about the wording of this law. Let us use sense and reason, and not fear or hysteria while discussing this topic, as these are the very things that prevent dialogue, because of which political opponents diverge into personal attacks, to the shame of our people.