Friday, July 27, 2012

A Gift From 1816

As Indiana’s bicentennial is now only four years away – and with that, the 200th anniversary of the adoption of the State’s first constitution – I propose that we amend Indiana’s current constitution to restore an important part of the original, which was replaced when Indiana’s second (and current) constitution took effect in 1851.

Our original (1816) constitution’s Bill of Rights began, “That the general, great and essential principles of liberty and free Government may be recognized and unalterably established; WE declare, That all men are born equally free and independent, and have certain natural, inherent, and unalienable rights; among which are the enjoying and defending life and liberty, and of acquiring, possessing, and protecting property, and pursuing and obtaining happiness and safety.”

This language, which is noticeably similar to one of the most memorable parts of the Declaration of Independence (“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness”), was actually drawn from an early Pennsylvania constitution, which itself had adopted (with a slight modification) the language of the Virginia Declaration of Rights, which was adopted about two months before the Declaration of Independence. Twenty-one state constitutions currently include this or something like it, including Virginia and West Virginia, which use the older version from the Virginia Declaration of Rights. The very close Massachusetts variant, adopted in 1780, was used to bring about the end of slavery there, making it the first of the United States to do so. Later, in 1847, in Liberia, when former American slaves and their descendants formed a republic and constitution for themselves, they chose to incorporate into that constitution this same language that Pennsylvania, Indiana, and other American states had used.

At Indiana’s 1850 - 1851 constitutional convention, a delegate named Watts initially proposed carrying the 1816 language over into our new (and now current) constitution, but at the suggestion of another delegate, he agreed to replace it with the more elegant but less specific language of the Declaration of Independence, which ultimately was used. The only reason given for the change was to invoke and honor Jefferson and other contributors to the Declaration. Records of the debates and proceedings of the convention show delegates using the two versions interchangeably, with some delegates, including Watts, indicating that they believed the two versions to have the same meaning (though later on in the convention, Watts attempted to change the wording back to the 1816 version, explaining that the Declaration version did not include everything that he had thought that it included). Ultimately, the Declaration version was used, and it remains in Indiana’s constitution today (altered only by a 1984 amendment which replaced the word “men” with “people”).

The Hoosiers of 1851 were right to understand the rights to “life, liberty, and the pursuit of happiness” as having a certain, settled meaning which extends to the defense of life and liberty, the just acquisition, possession, and protection of property, and the pursuit of happiness and safety. However, these rights can only be applied in their long-established meaning, in practice, so long as the people, the legal community, and the judges of the state remain aware of that meaning. Unfortunately, through no fault of their own (after all, unless they had somehow been notified that the meaning and effect of natural rights had already been well-discussed, established, and settled, why would people go looking for that information, and how would they know where to look?), this no longer seems to be common knowledge, even among lawyers or judges. 1

If our legal system is unable or unwilling to vindicate the great rights of “Life, Liberty, and the Pursuit of Happiness” when they are stated in these general terms, then let us be more specific. We can begin by restoring the details that were declared and established by the first Hoosiers, in 1816.

1. In Doe v. O’Connor, in 2003, though the Indiana Supreme Court did not ultimately apply this section or state its understanding of it, the Court’s review of other states’ courts’ treatment of similar sections of their own constitutions strongly implies that it would treat our own Article I, Section I as though it were only a vague mission statement rather than binding law – notwithstanding that the Court has given effect to that section on previous occasions. (Indeed, if conclusions can be drawn from that portion of Doe v. O’Connor, the Court may well even be hesitant to apply the more specific, 1816 language; however, even if the change has no other effect, I would hope that the Court could be persuaded at least to recognize the right to defend life, liberty, and property – traditionally known as the “First Law of Nature” – which the 1816 language would clearly embed.)

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