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Opening Arguments

Conventional wisdom

Gov. Daniels wants big, bold ideas from his commission on government change, and even a constitutional convention is on the table:

The Republican governor has more in mind than just amending the state constitution, which has happened regularly in Indiana's history. Daniels has floated the idea of calling a constitutional convention, where delegates would rewrite the constitution from square one. Although parts of the current document could be retained, anything dealing with the structure of government and the legal rights of Hoosiers could potentially be changed.

This possibility is, not to overstate the response, freaking out some people. Doug's reaction is typical: "Maybe I don't trust the passions and attention span of my fellow citizens, but this strikes me as a spectacularly Bad Idea. Such a convention wouldn't have to limit itself to property tax reforms or any other particular charge. Just a gigantic can of worms."

A certain amount of fear and loathing is understandable. Just look at the national constitutional convention. Nothing much was expected from that gathering. It wasn't even originally suggested by the central government -- weak and ineffectual under the Articles of Confederation -- but by Virginia. Only five colonies signed on originally, and all but one (Rhode Island) finally agreed after the central government gave its imprimatur to the idea. The convention had one task and one task only: "the sole and express purpose of revising the Articles of Confederation and reporting to Congress and the several legislatures such alterations and provisions therein as shall when agreed to in Congress and confirmed by the States render the Federal Constitution adequate to the exigencies of Government and the preservation of the Union." But rarely has there been such a collection of dangerous minds, and those gathered have become known as the Founders because they threw everything out and started from scratch.

The possibility that lesser minds might attempt that with Indiana's constitution inspires a certain amount of trepidation. Just look at Article I, for example, the state's version of a Bill of Rights. It's a thing of beauty, 37 sections instead of the U.S. Bill of Rights' mere 10, and none of us should want it messed with.

On the other hand (you knew it was coming, right?), the Philadelphia convention was followed by a vigorous detabe -- the likes of which the world had never seen -- that stretched from coast to coast as Americans took to the streets and the newspapers and pamphlets to talk about the kind of country they wanted. Part of the reason for the convention in the first place -- as expressed by George Washington -- was that the "American idea" was in danger of being lost in the clash of regional prejudices and local imperatives. Could there be a national government strong enough to establish a national interest but with enough checks and balances to guarantee basic freedoms? This great experiment in liberty began with the free exercise of that liberty.

Is there an "Indiana idea"? I don't know, and it certainly would be risky to let whoever the politicians today appoint try to come up with one. But I presume that whatever a convention came up with would be the subject of a statewide conversation and some kind of ratification process.  That's a conversation if might be useful to engage in. If we can't trust Hoosiers to have it, we might as well just let the General Assembly rule us and stay home quietly, mailing out our tax payments when we are told to.


Don Sherfick
Tue, 07/31/2007 - 9:26am

Marcia Oddi on Indiana Law Blog quotes from an unidentified Indiana Supreme Court case, which in part said: "Our 1851 Constitution, unlike the 1816 document, contains no provisions for revision by constitutional convention, but does set out in Article 16 the amendatory procedures discussed previously. However, the Indiana Supreme Court has held that the lack of such provisions cannot prohibit the people of our state from requesting a convention if they so desire. Section 1 of Article 1 states, "... the People have, at all times, an indefeasible right to alter and reform their government." Therefore, if a referendum of the citizens of Indiana should indicate the desire for a constitutional convention, the fact that no express provisions for such procedure are set out in our present document could not prohibit the will of the people from being followed."

What factual situation/litigation prompted this decision (assuming it was not some kind of mere advisory statement...I am not sure if such is permissable in Indiana) isn't yet apparently known. In any event, if statement is correct and somehow the right of Indiana citizens to effect a constitutional change/rewrite outside of the current amending process exists, there are still many unanswered questions concerning the necessity of the legislature calling one, whether or not the governor would need to concur (as in ordinary legislation), who would with legitimacy decide the makeup of the convention, apportioning delegates, etc. And any ultimate product of such a convention would almost certainly be challanged as in itself constitutional. Even if, as you suggest, Hoosier wisdom and ability to have a statewide conversation better than the one elected legislators engage in currently, the procedural can of worms itself ought not be be opened because of those questions. By the time they would be ultimately settled the ordinary amendment process could have long run its course anyway.