Friday, November 27, 2020

John Jay's Address to the People of the State of New York, Part 5

A message for 21st century America in a 1788 address by John Jay, concluded:

“Let us also be mindful that the cause of freedom greatly depends on the use we make of the singular opportunities we enjoy of governing ourselves wisely; for if the event should prove, that the people of this country either cannot or will not govern themselves, who will hereafter be advocates for systems, which however charming in theory and prospect, are not reducible to practice.  If the people of our nation, instead of consenting to be governed by laws of their own making, and rulers of their own choosing, should let licentiousness, disorder, and confusion reign over them, the minds of men every where, will insensibly become alienated from republican forms, and prepared to prefer and acquiesce in Governments, which, though less friendly to liberty, afford more peace and security.

Receive this Address with the same candor with which it is written; and may the spirit of wisdom and patriotism direct and distinguish your councils and your conduct.

A citizen of New York.

Thursday, November 26, 2020

John Jay's Address to the People of the State of New York, Part 4

From a 1788 address by John Jay, delivering a message that Americans of the 21st century need to hear:

“Such other foreign nations, if any such there be, who, jealous of our growing importance, and fearful that our commerce and navigation should impair their own—who behold our rapid population with regret, and apprehend that the enterprising spirit of our people, when seconded by power and probability of success, may be directed to objects not consistent with their policy or interests, cannot fail to wish that we may continue a weak and a divided people. …”

“…Are we sure that our distresses, dissentions and weakness will neither invite hostility nor insult?  If they should, how ill prepared shall we be for defence! without Union, without Government, without money, and without credit! …”

“…We must in the business of Government as well as in all other business, have some degree of confidence, as well as a great degree of caution.  Who on a sick bed would refuse medicines from a physician, merely because it is as much in his power to administer deadly poisons, as salutary remedies? …”

“Consider then, how weighty and how many considerations advise and persuade the people of America to remain in the safe and easy path of Union; to continue to move and act as they hitherto have done, as a band of brothers; to have confidence in themselves and in one another; and since all cannot see with the same eyes, at least to give the proposed Constitution a fair trial, and to mend it as time, occasion and experience may dictate.  It would little become us to verify the predictions of those who ventured to prophecy, that peace: instead of blessing us with happiness and tranquility, would serve only as the signal for factions, discords and civil contentions to rage in our land, and overwhelm it with misery and distress.”

Friday, November 20, 2020

John Jay's Address to the People of the State of New York, Part 3

From an address by John Jay in 1788, with a message that present-day Americans need to hear:

Concerning the delegates to the Constitutional Convention:

“They were likewise sensible that on a subject so comprehensive, and involving such a variety of points and questions, the most able, the most candid, and the most honest men will differ in opinion.  The same proposition seldom strikes many minds exactly in the same point of light; different habits of thinking, different degrees and modes of education, different prejudices and opinions early formed and long entertained, conspire with a multitude of other circumstances, to produce among men a diversity and contrariety of opinions on questions of difficulty.  Liberality, therefore, as well as prudence, induced them to treat each other’s opinions with tenderness, to argue without asperity, and to endeavor to convince the judgment without hurting the feelings of each other.

“Although many weeks were passed in these discussions, some points remained, on which a unison of opinions could not be effected.  Here again, that same happy disposition to unite and conciliate, induced them to meet each other; and enabled them, by mutual concessions, finally to complete and agree to the plan they have recommended, and that too with a degree of unanimity which, considering the variety of discordant views and ideas, they had to reconcile, is really astonishing. …”

“You must have observed that the same temper and equanimity which prevailed among the people on the former occasion, no longer exists.  We have unhappily become divided into parties; and this important subject has been handled with such indiscreet and offensive acrimony, and with so many little unhandsome artifices and misrepresentations, that pernicious heats and animosities have been kindled, and spread their flames far and wide among us. …”

“As vice does not sow the seeds of virtue, so neither does passion cultivate the fruits of reason.  Suspicions and resentments create no disposition to conciliate, nor do they infuse a desire of making partial and personal objects bend to general union and the common good.  The utmost efforts of that excellent disposition were necessary to enable the late Convention to perform their task; and although contrary causes sometimes operate similar effects, yet to expect that discord and animosity should produce the fruits of confidence and agreement, is to expect ‘grapes from thorns, and figs from thistles.’”

Saturday, November 14, 2020

John Jay's Address to the People of the State of New York, Part 2

From an address by John Jay to the people of New York in 1788, advocating the ratification of the proposed United States Constitution by the state's ratification convention:

“As the importance of this question must be obvious to every man, whatever his private opinions respecting it may be, it becomes us all to treat it in that calm and temperate manner, which a subject so deeply interesting to the future welfare of our country and prosperity requires.  Let us therefore as much as possible repress and compose that irritation in our minds, which to warm disputes about it may have excited.  Let us endeavour to forget that this or that man, is on this or that side; and that we ourselves, perhaps without sufficient reflection, have classed ourselves with one or the other party.  Let us remember that this is not a matter to be regarded as a matter that only touches our local parties, but as one so great, so general, and so extensive in its future consequences to America, that for our deciding upon it according to the best of our unbiassed judgment, we must be highly responsible both here and hereafter. …”

Friday, November 13, 2020

John Jay's Address to the People of the State of New York, Part 1

The following is taken from John Jay's 1788 address to the people of the State of New York to advocate ratification of the proposed United States Constitution by the state's ratification convention.  The Americans of the 21st century need no less than the Americans of 1788 to give serious consideration to the points made by Jay in this address.  It is a message that Americans have needed to hear (or to read -- to receive, one way or another) for years, but the more time passes, the more intense that need has seemed to grow.

When Jay himself delivered this message, it was a plea to Americans to recover their senses before they (or "we") irreparably damage the hard-won and precious gift that America is and ought to be.  I offer this message now for the same reason.

As the title above indicates, this is the first of several parts.

“Friends and Fellow Citizens:

“THERE are times and seasons, when general evils spread general alarm and uneasiness, and yet arise from causes too complicated, and too little understood by many, to produce an unanimity of opinions respecting their remedies.  Hence it is, that on such occasions, the conflict of arguments too often excites a conflict of passions, and introduces a degree of discord and animosity, which, by agitating the public mind dispose it to precipitation and extravagance.  They who on the ocean have been unexpectedly enveloped with tempests, or suddenly entangled among rocks and shoals, know the value of that serene, self-possession and presence of mind, to which in such cases they owed their preservation; nor will the heroes who have given us victory and peace, hesitate to acknowledge that we are as much indebted for those blessings to the calm prevision, and cool intrepidity which planned and conducted our military measures, as to the glowing animation with which they were executed.

“While reason retains her rule, while men are as ready to receive as to give advice, and as willing to be convinced themselves, as to convince others, there are few political evils from which a free and enlightened people cannot deliver themselves.  It is unquestionably true, that the great body of the people love their country, and wish it prosperity; and this observation is particularly applicable to the people of a free country, for they have more and stronger reasons for loving it than others.  It is not therefore to vicious motives that the unhappy divisions which sometimes prevail among them are to be imputed; the people at large always mean well, and although they may on certain occasions be misled by the counsels, or injured by the efforts of the few who expect more advantage from the wreck, than from the preservation of national prosperity, yet the motives of these few, are by no means to be confounded with those of the community in general.

“That such seeds of discord and danger have been disseminated and begin to take root in America, as unless eradicated will soon poison our gardens and our fields, is a truth much to be lamented; and the more so, as their growth rapidly increases, while we are wasting the season in honestly but imprudently disputing, not whether they shall be pulled up, but by whom, in what manner, and with what instruments, the work shall be done. …”

Tuesday, November 10, 2020

At the very latest

After the Electors cast their votes next month, Congress will count those votes on January 6th, 2021.  At the very latest, the outcome of the 2020 United States Presidential Election will be conclusively settled on (or, if Congress is delayed, immediately following) January 6th, 2021.

The Clock Is Ticking

There remain some who, for the time being, are reluctant to acknowledge that the outcome of the 2020 United States Presidential Election is, in fact, what it is now widely believed to be.  Strictly speaking, I cannot say that they would be wrong to claim that the outcome is conclusively and officially settled.  (I would not say the same for some of the other claims that many of them have been making, however; the claims that many of them have made are definitely wrong.)  The probability that the President will prevail in his post-election efforts to force the election to give him a different result is, we should all admit, greater than zero.  That probability may be very close to zero, but it is not zero.  The outcome of the election may no longer be in doubt, but it is true that it is not yet definitively, authoritatively, irrevocably settled, yet.

But it will be.  The clock is ticking.... 

(In setting up this clock, I was required to set a location for it.  I chose Washington, D.C., but yes, I am aware that the Electoral College does not assemble in a single place for the actual casting of the votes, and that the electors from each state assemble in their respective states or in their federal district, as the case may be.)

Sunday, August 2, 2020

A Good Bill With A Good "Constitutional Authority Statement"

I have chosen to put the substantively unimportant point up front: A little over three years ago, I wrote that the rule in the United States House of Representatives which requires that any bill or joint resolution introduced in that house be accompanied by a statement identifying the part of the Constitution that gives Congress the authority to enact it (the bill or joint resolution) has not, in practice, served any useful purpose, and that if it has any effect at all, that effect must be to make U.S. Representatives accustomed to and comfortable with regularly expressing on the record their open contempt for the United States Constitution.  I had reviewed the Constitutional Authority Statements for a reasonably large number of bills that had (at that time) recently been introduced in that house, and most of these statements simply were not honest, avoiding the need to supply a genuine statement of a source of authority by invoking the Interstate Commerce Clause, the Necessary and Proper Clause, or simply the Constitution's Article I, Section 8 at large, regardless of whether any of the three fit the bill.

However, this June, Rep. Justin Amash introduced H.R. 7085, the "Ending Qualified Immunity Act", in the United States House of Representatives.  When I read the bill, I immediately thought, "The source of constitutional authority for this bill is obviously Section 5 of the Fourteenth Amendment."  Then, out of curiosity, I decided to look at the Constitutional Authority Statement for the bill, and when I did, I saw this:

I would expect nothing less from Rep. Amash, but I still appreciate that he has now given me the opportunity to finally see a Constitutional Authority Statement that I can tell was written by someone who is familiar with the Constitution.

All of that was the substantively unimportant point.  To that, I add that this is a good bill that ought to have received more support than it has, so far.  42 U.S.C. § 1983 (along with a number of other excellent sections) was passed into law in order to better secure the rights of every person against the violation of those rights by state actors.  The enactment of Section 1983 (among other sections) was part of the effort of Congress to enforce the Fourteenth Amendment to the United States Constitution, which Section 5 of that amendment authorizes Congress to do, and which Congress was right to do.  Congress would be right to do it again, this year, by passing this bill and fixing the judicially-created sinkhole into which much of Section 1983's power to deliver justice has collapsed and fallen away.

Unfortunately, the bill does not appear to have made much progress in the House of Representatives, yet, and the current President of the United States has made known his opposition to anything that threatens to abolish or curtail qualified immunity, in keeping with his general position favoring wrongdoing by enforcement personnel being met with impunity.  Regardless, the bill deserves support.

I would offer one suggestion for improvement, however, and it concerns the bill's "Short Title".  I would really like the chance to hear people refer to this bill as "The Civil Rights Act of 2020".

Friday, July 31, 2020

Still Waiting for a Special Session of the Indiana General Assembly

Though a few of us have been calling upon Indiana Governor Eric Holcomb since the spring to call a special session of the Indiana General Assembly, the number of us seems to have been growing, recently.

Those who have only recently begun to advocate the calling of a special session may find useful (or interesting, at least) what I discovered this spring -- particularly those who are beginning to lose their patience with the governor's repeated renewals of his own declaration of a "State of Disaster Emergency" (while the General Assembly, the only authority apart from the governor himself that can terminate a State of Disaster Emergency, has been left impotent and dormant).  If it seems strange to any of them (or, rather, to any of "you", if you are reading this) that Indiana's "Emergency Management and Disaster Law" makes the only check on a governor's emergency powers a concurrent resolution passed by the General Assembly -- a check that can only be used when the Indiana General Assembly is in session, which it usually is not -- that is because it is, in fact, strange.

Also, I found the reason why Indiana's "Emergency Management and Disaster Law" makes the only check on the governor's emergency powers something that can almost never be used: it was neither written by nor for Indiana.  The people who wrote it (in the early 1970s, under a contract with the Nixon Administration) wrote it as a model law for any state which might choose to adopt it (which Indiana's General Assembly did shortly after that).  They did not know that the Indiana General Assembly is only in session for a few months each year; the official commentary published with this "Example State Disaster Act" indicates that they designed that check with the expectation that the legislature of a state that had adopted the act would be in session during the emergency -- just as it should be.

As bad as that is, IC 10-14-3 (the Emergency Management and Disaster Law) is packed with things that are just as bad or even worse.  Becoming acquainted with that chapter ("Chapter 3") this year has been like shining an ultraviolet light around in a motel room or department store.

Thursday, July 23, 2020

Still no executive order about face masks in Indiana

This new face mask "requirement" in Indiana was announced yesterday afternoon, but the executive order to impose that requirement still has not been posted in the governor's area of the state website, if it has been completed at all.  (Note: The press release states that "once signed", the order will appear at the internet address given, which suggests to me that the final draft has not yet been written -- or at least that it had not been written as of when the press release was released.)

I, for one, would like to actually read this executive order before commenting on it.  The press release states, "The executive order states a penalty can be levied under authority of state law," and I would like to know what this penalty is.  If the plan is to invoke threats of prosecution under IC 10-14-3-34 -- again -- then I may have to start raising questions about the idea that IC 10-14-3-34 succeeds in legitimately defining a criminal offense at all.

What is causing the delay in the publication of this executive order?  Maybe Governor Holcomb gave his staff extra time to search for ways to make the order legal.

Tuesday, July 14, 2020

Legacy of the Northwest Ordinance

On July 13th, 1787, while the United States Constitutional Convention was underway in Philadelphia, the existing congress under the Articles of Confederation passed what is best known as the Northwest Ordinance.  The Northwest Ordinance was enacted in order to further the organization and government of, and the preparation for the eventual formation of new states from, the Northwest Territory (which was north of the Ohio River and west of the original states; Virginia had ceded this territory to the United States).  However, the Northwest Ordinance is notable for a number of other reasons, among which being that it prohibited slavery throughout the Northwest Territory, which comprised what has since become the states of Ohio, Indiana, Illinois, Michigan, and part of Wisconsin.

It is true that the Northwest Ordinance's prohibition of slavery did not succeed in entirely ending slavery throughout the Northwest Territory (at least not while the ordinance continued to govern the territory).  However, a little over sixty years after the Northwest Ordinance was passed, Abraham Lincoln began to make the argument -- one which I find persuasive -- that the prohibition of slavery in the Northwest Territory is what made it possible for the states that formed from that territory to enter the Union as free states.  If Lincoln was right (and I think that he was), the history of the United States in the 19th century could very well have been much worse if if were not for the Northwest Ordinance.

When Lincoln made that was making that argument in the 1850s, it was, of course, as he and the emerging Republican Party were fighting to prevent the spread of slavery into the territories of the United States.  Lincoln explained that even where other relevant variables were accounted for, the history (up to that point in time) of the development of U.S. territories into states demonstrates that the factor that determined whether a given territory ultimately became a slave state or a free state was the answer to the question of whether slavery was permitted or prohibited there while it was a territory.  The impact of the Northwest Ordinance featured prominently in Lincoln's explanation of this, which his own words, taken from newspaper reports of a few of his speeches in the late 1850s, will show below.  (Where Lincoln mentions "Douglas", below, he is referring to his well-known rival Stephen Douglas, who advocated a deviant form of what he called "Popular Sovereignty".)

"The ordinance of 1787 was passed simultaneously with the making of the Constitution of the United States.  It prohibited the taking of slavery into the North-western Territory, consisting of Ohio, Indiana, Illinois, Michigan and Wisconsin.  There was nothing said in the Constitution relative to the spread of slavery in the Territories, but the same generation of men said something about it in this ordinance of '87, through the influence of which you of Indiana, and your neighbors in Ohio, Illinois, Wisconsin and Michigan, are prosperous, free men." [September 19th, 1859, in Indianapolis.]

"It is a favorite proposition of Douglas' that the interference of the General Government, through the Ordinance of '87, or through any other act of the General Government, never has made or ever can make a Free State; that the Ordinance of '87 did not make Free States of Ohio, Indiana or Illinois.... I have no doubt that the people of the State of Ohio did make her free according to their own will and judgment, but let the facts be remembered.  In 1802, I believe, it was you who made your first constitution, with the clause prohibiting slavery, and you did it I suppose very nearly unanimously, but you should bear in mind that you -- speaking of you as one people -- that you did so unembarrassed by the actual presence of the institution amongst you; that you made it a Free State, not with the embarrassment upon you of already having among you many slaves, which if they had been here, and you had sought to make a Free State, you would not know what to do with.  If they had been among you, embarrassing difficulties, most probably, would have induced you to tolerate a slave constitution instead of a free one, as indeed these very difficulties have constrained every people on this continent who have adopted slavery.  Pray what was it that made you free?  What kept you free?" [September 17th, 1859, in Cincinnati.]

"Let us take an illustration between the States of Ohio and Kentucky. Kentucky is separated by this river Ohio, not a mile wide.  A portion of Kentucky, by reason of the course of the Ohio, is further north than this portion of Ohio in which we now stand.  Kentucky is entirely covered with slavery -- Ohio is entirely free from it.  What made that difference?" [September 17th, 1859 in Cincinnati, continued.]

"It could not be because the people had worse hearts.  They were as good as we of the North -- the same people.  There was some other reason.  You could light upon nothing in the whole range of conjecture, save and except that the ordinance of '87, in the incipient stages, kept it out of the country north of the Ohio, and no law kept it out of Kentucky and the South.  It was not the great principle of popular sovereignty." [September 19th, 1859 in Indianapolis, continued.]

"If there is any other reason than this, I confess that it is wholly beyond my power to conceive of it.  This, then, I offer to combat the idea that that ordinance has never made any State free.  I don't stop at this illustration.  I come to the State of Indiana; and what I have said as between Kentucky and Ohio I repeat as between Indiana and Kentucky; it is equally applicable." [September 17th, 1859 in Cincinnati, continued.]

"There was no difficulty in introducing slaves into Kentucky if the people wished, but it is a hard job to get them out of it.  When the Kentuckians came to form the Constitution, they had the embarrassing circumstances of slavery among them -- they were not a free people to make their Constitution.  The people of Indiana had no such embarrassment, but would have had, had not slavery been kept away by the ordinance of '87." [September 19th, 1859 in Indianapolis, a bit before the previous passage from that speech.]

"In 1810 there was a little slavery in Illinois and a little in Missouri.  The two States ran along together, getting ready to form a State Constitution until 1820.  Each one of them had a few slaves.  When they were ready to come into the Union, they had not kept parallel on the subject of slavery.  In Illinois it had decreased, while in Missouri the number of slaves had increased to 10,000.  Missouri came in as a slave State and Illinois as a free State.  The two States are to a certain extent in the same parallel of latitude, at least the northern half of Missouri and the southern half of Illinois are in the same latitude, so that the climate would have the same effect on one as the other, and in the soil there is no material difference as far as bears upon the question of slavery being settled upon one or the other.  There were no natural causes to make a difference in the filling up of the two States, yet there was -- what was the cause of that difference?  It is most natural to say, that in Missouri there was no law to keep that country from filling up with slaves, while in Illinois there was the ordinance of 1787." [September 19th, 1859 in Indianapolis, continued.]

"I think all these facts most abundantly prove that my friend Judge Douglas' proposition, that the Ordinance of '87 or the national restriction of slavery, never had a tendency to make a Free State, is a fallacy -- a proposition without the shadow or substance of truth about it." [September 17th, 1859 in Cincinnati, continued.]

In some of his speeches, Lincoln explained further why the absence of a prohibition of slavery in a territory could have such a pronounced tendency to establish slavery there -- and why slavery, once it was present and had become firmly planted in a territory, made the territory as a whole so much less likely to adopt a free constitution for itself when it attained statehood and was admitted to the Union:

"Now, what is Judge Douglas' Popular Sovereignty?  It is, as a principle, no other than that, if one man chooses to make a slave of another man, neither that other man nor anybody else has a right to object. ... Applied in government, as he seeks to apply it, it is this: If, in a new territory into which a few people are beginning to enter for the purpose of making their homes, they choose to either exclude slavery from their limits, or to establish it there, however one or the other may affect the persons to be enslaved, or the infinitely greater number of persons who are afterward to inhabit that territory, or the other members of the families of communities, of which they are but an incipient member, or the general head of the family of States as parent of all -- however their action may affect one or the other of these, there is no power or right to interfere.  That is Douglas’ popular sovereignty applied." [September 16th, 1859, in Columbus, Ohio.]

"He says, that according to his Popular Sovereignty, the general government may give to the territories governors, judges, marshals, secretaries, and all the other chief men to govern them, but they must not touch upon this other question.  Why?  The question of who shall be governor of a territory for a year or two, and pass away, without his track being left upon the soil, or an act which he did for good or for evil being left behind, is a question of vast national magnitude.  It is so much opposed in its nature to locality, that the nation itself must decide it; while this other matter of planting slavery upon a soil -- a thing which once planted cannot be eradicated by the succeeding millions who have as much right there as the first comers or if eradicated, not without infinite difficulty and a long struggle -- he considers the power to prohibit it, as one of these little, local, trivial things that the nation ought not to say a word about; that it affects nobody save the few men who are there.  Take these two things and consider them together, present the question of planting a State with the Institution of slavery by the side of a question of who shall be Governor of Kansas for a year or two, and is there a man here, -- is there a man on earth, who would not say that the Governor question is the little one, and the slavery question is the great one?  I ask any honest Democrat if the small, the local, and the trivial and temporary question is not, who shall be Governor?  While the durable, the important and the mischievous one is, shall this soil be planted with slavery?" [September 16th, 1859, in Columbus, Ohio, continued.]

On that same subject is the following, from a newspaper report on a speech given by Lincoln in Bloomington, Illinois on September 26th, 1854 (in which the reporter does not attempt to disguise the fact that the report is not a transcript of what Lincoln said, but that it conveys the substance of what Lincoln said, probably expressing it in his own words as far as possible):

"He contended that the only way slavery could get a foothold anywhere was by going in by slow degrees, little by little, before there were people enough to form a territorial government.  Then, when the government is to be organized, slavery is already on the ground -- a 'local institution' -- and has an equal chance with freedom.  Said Mr. L, if you will keep slavery out of any territory until there are 50,000 inhabitants, I will risk the chances of its ever being established there.  He would venture on the good sense of fifty thousand people -- that number could keep slavery out of South Carolina, were it not for the fact that [it] is already there.  The strong argument that Kansas will be a slave State is that slavery now exists there, by recognition of Congress.  It has already obtained a foothold, and is an institution of the territory -- one of their 'domestic institutions.'" [September 26th, 1854, in Bloomington, Illinois.]

There is no need for me to write a conclusion to this post; Abraham Lincoln himself provided a fitting one:

"Not only did that ordinance prevail, but it was constantly looked to whenever a step was taken by a new Territory to become a State.  Congress always turned their attention to it, and in all their movements upon this subject, they traced their course by that ordinance of '87.  When they admitted new States they advertised them of this ordinance as a part of the legislation of the country.  They did so because they had traced the ordinance of '87 throughout the history of this country.  Begin with the men of the Revolution, and go down for sixty entire years, and until the last scrap of that territory comes into the Union in the form of the State of Wisconsin -- everything was made to conform with the ordinance of '87 excluding slavery from that vast extent of country." [September 16th, 1859, in Columbus, Ohio.]

Monday, July 13, 2020

Today is Northwest Ordinance Day.

Today is Northwest Ordinance Day.  I had intended to post something a little more substantive about this (which I will just post tomorrow, instead), but I have been unable to find any indication on the state website or in the news that Indiana Governor Eric Holcomb has proclaimed July 13th, 2020 Northwest Ordinance Day as the Indiana Code calls upon the governor to do each year.  (For those who were going to ask me whether he issued an executive order declaring IC 1-1-14-1 suspended and moving Northwest Ordinance Day to June, the answer is no.  I checked.)

The day will not end for over another hour, so the governor may yet issue the proclamation.  (It is also possible that he has already issued it and I simply failed to find anything online indicating that it happened.)  However, since this happens to be a problem that I can solve on my own -- I can proclaim things when I choose to do so -- I have decided to come to the assistance of my state and our governor by proclaiming today "Northwest Ordinance Day" in Indiana.  I cannot attach a seal to it that depicts a bison jumping over a log, but still think that my proclamation will serve its purpose: to come to the aid of my state by stating, "Today is Northwest Ordinance Day."

(Make no mistake: I am not overselling the importance of this assistance.  Some people take Northwest Ordinance Day very seriously -- even more than I do.)

So, here it comes:

I proclaim that today, July 13th, 2020, is Northwest Ordinance Day in the State of Indiana, and presumably in a few other states as well.

There.  It is done.

Friday, June 12, 2020

The Virginia Declaration of Rights

I decided to post my post about the anniversary of the Virginia Convention's adoption of the Virginia Declaration of Rights (on June 12, 1776) on time, this year ... unlike what I have done once or twice in years past.

Many sources on the Virginia Declaration of Rights state (correctly) that it became a major influence on the United States "Bill of Rights" (which took effect a little over fifteen years later) and that it also influenced Thomas Jefferson in drafting the Declaration of Independence.  (If I remember correctly, Thomas Jefferson later disputed this, indicating that the most prominent similarities between the two documents resulted from both documents being influenced by the same thing -- their respective authors were articulating ideas that had already grown popular in America and had already been expressed by various people in various ways.  I am inclined to believe Jefferson, particularly considering that the Virginia Declaration of Rights was adopted only about two and a half weeks before the Declaration of Independence had finished being debated, edited, and finally adopted by Congress.  If Jefferson saw the Virginia Declaration of Rights before July 4th, it seems unlikely to me that it would have reached him in time to significantly influence his drafting of the Declaration.  Of course, I could be wrong.)

I appreciate the Virginia Declaration of Rights as one of many, though one of the most well-known, documents recording the beliefs, convictions, motives, and aims of the active members of the Founding Generations -- their cause as they understood it.  Anyone who does not understand quite what kinds of things I had in mind when I referred to the "republican form of government" in some of my posts from over the past couple of months ought to read the Virginia Declaration of Rights.  It articulates well most of the key precepts that define that type of government, and it identifies the principal rules by which such a government is itself governed.

If you want to form a deeper and more complete understanding of the "republican form of government", do not end your inquiry the moment you have finished reading the Virginia Declaration of Rights.  (If you need help figuring out what to read next, I can help.)  However, if you just want to become familiar with a few of the most significant ideas that define it, reading the Virginia Declaration of Rights would be an excellent way to start.  (Also, do not neglect the Declaration of Independence.  If you read no other part of it, at least read the second, third, and fourth sentences of it, and remember them well.)

To ensure that the inconvenience of searching for the text of the Virginia Declaration of Rights does not prevent anyone from finding and reading it, I have placed its text immediately below this sentence.

The Virginia Declaration of Rights

[Adopted by the Virginia Convention on June 12, 1776.]

A Declaration of Rights made by the representatives of the good people of Virginia, assembled in full and free convention; which rights do pertain to them, and their posterity, as the basis and foundation of government.

First, That all men are by nature equally free and independent and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.

2d.  That all power is vested in, and consequently derived from, the people; that magistrates are their trustees and servants, and at all times amenable to them.

3d.  That government is, or ought to be instituted for the common benefit, protection, and security of the people, nation, or community; of all the various modes and forms of government, that is best which is capable of producing the greatest degree of happiness and safety, and is most effectually secured against the danger of maladministration; and that whenever any government shall be found inadequate or contrary to these purposes, a majority of the community hath an indubitable, unalienable, and indefeasible right to reform, alter, or abolish it, in such manner as shall be judged most conducive to the public weal.

4th.  That no man, or set of men, are entitled to exclusive or separate emoluments or privileges from the community, but in consideration of public services; which, not being descendible, neither ought the offices of magistrate, legislator, or judge, to be hereditary.

5th.  That the legislative and executive powers of the state should be separate and distinct from the judicicative; and that the members of the two first may be restrained from oppression, by feeling and participating the burthens of the people, they should, at fixed periods, be reduced to a private station, return into that body from which they were originally taken, and the vacancies be supplied by frequent, certain, and regular elections, in which all, or any part, of the former members, to be again eligible, or ineligible, as the laws shall direct.

6th.  That elections of members to serve as representatives of the people, in Assembly, ought to be free, and that all men, having sufficient evidence of permanent common interest with, and attachment to, the community, have the right of suffrage, and cannot be taxed or deprived of their property for public uses without their own consent, or that of their representatives so elected, nor bound by any law to which they have not, in like manner, assented for the public good.

7th.  That all power of suspending laws, or the execution of laws, by any authority, without consent of the representatives of the people, is injurious to their rights, and ought not to be exercised.

8th.  That in all capital or criminal prosecutions, a man hath a right to demand the cause and nature of his accusation, to be confronted with the accusers and witnesses, to call for evidence in his favour, and to a speedy trial by an impartial jury of his vicinage, without whose unanimous consent he cannot be found guilty; nor can he be compelled to give evidence against himself; that no man be deprived of his liberty, except by the law of the land, or the judgment of his peers.

9th.  That excessive bail ought not to be required, nor excessive fines imposed, nor cruel & unusual punishments inflicted.

10th.  That general warrants, whereby any officer or messenger may be commanded to search suspected places without evidence of a fact committed, or to seize any person or persons not named, or whose offense is not particularly described and supported by evidence, are grievous and oppressive, and ought not to be granted.

11th.  That in controversies respecting property, and in suits between man and man, the ancient trial by jury is preferable to any other, and ought to be held sacred.

12th.  That the freedom of the press is one of the great bulwarks of liberty, and can never be restrained but by despotic governments.

13th.  That a well-regulated militia, composed of the body of the people trained to arms, is the proper, natural, and safe defense of a free state; that standing armies, in time of peace, should be avoided, as dangerous to liberty; and that, in all cases, the military should be under strict subordination to, and governed by, the civil power.

14th.  That the people have a right to uniform government; and, therefore, that no government separate from, or independent of the government of Virginia, ought to be erected or established within the limits thereof.

15th.  That no free government, or the blessing of liberty, can be preserved to any people but by a firm adherence to justice, moderation, temperance, frugality, and virtue, and by frequent recurrence to fundamental principles.

16th.  That religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence; and therefore all men are equally entitled to the free exercise of religion, according to the dictates of conscience; and that it is the mutual duty of all to practise Christian forbearance, love, and charity towards each other.

Wednesday, June 10, 2020

Objecting to Curfews, For One of the Numerous Compelling Reasons -- Part 2

I may have inadvertently buried the lede in yesterday's post about curfews.  At its end, I explained that while throughout the post, I had discussed curfews as intruding on the freedom to travel over or remain on public property, the curfew orders that I have seen (all of them from Indiana; I apologize, but I would need a good reason to do it before I would devote the time that it would take to track down and read the instruments used in establishing curfews in cities located throughout the United States) state that the curfews that they respectively declared were to extend to private property.

Just to make certain that I do not bury the lede again, I will state right here: All of the curfew orders issued by Indianapolis Mayor Joe Hogsett affected to make it a Class B misdemeanor, punishable by up to 180 days in jail, for people in Indianapolis even to have been in their own driveways during any of the curfews.  (Carmel Mayor Jim Brainard's near-copy of those orders did the same thing, but he only imposed a curfew for one night, and it isn't clear to me that anyone in Carmel was aware that there had been a curfew until it was over.)

Most of the curfew orders that I have seen are nearly identical in the wording of their substantive parts, so it would serve no purpose to link to and discuss a large number of them.  (In Indianapolis, the mayor issued separate orders to declare curfews for different nights, but each of his orders is so similar to the others that there is no reason to cover more than one of them.)  Indianapolis Mayor Joe Hogsett's June 5th order, which declared curfews last Friday and Saturday night (running overnight, as curfews tend to do), reads (beginning at section 2(b)), "During the Curfew, no person may travel public streets or be in public places in Marion County unless exempt under Section 2(c)."*  Section 2(b)(ii), however, defines "public streets" and "public places" in a peculiar way: "For purposes of this order, 'public streets' and 'public places' means any place, whether on privately or publicly owned property, accessible to the general public.  This includes, but is not limited to, streets and roads, alleys, highways, driveways, sidewalks, parks, plazas, parking lots, and vacant lots."

I have been exploring the bizarre and dangerous characteristics and effects of IC 10-14-3 (which, coincidentally, is what Indiana mayors have claimed over these past two weeks gives them authority to impose curfews) for months, but even I was surprised to discover that Indianapolis Mayor Joe Hogsett had invoked it in order to impose curfews throughout Marion County which treats private property as a public place (and consequently off-limits to everyone while a curfew is in effect), so long as it is a "place" (which it is bound to be) that is "accessible to the general public."  That could include a lot of places!  A place is "accessible to the general public" if the general public is able to access it.  There are many "places" on private property where the owner of the property would not want the general public to go but which nevertheless remain "accessible to the general public".  Hogsett's order provides a list of examples (but not an exclusive list) of what he understands to qualify as "public streets" and "public places".  This list, which appears at the end of the previous paragraph, explicitly identifies "driveways" as "public places", where people were forbidden to be for the duration of each of the curfews that Hogsett declared.  Hogsett's curfew orders, which include no exception that would have allowed people to be on their own property during the curfews (even when Hogsett considered their private property to qualify as "public places"), cannot be understood other than as having forbidden people to be in their own driveways during any of the curfews that he declared.

Carmel Mayor Jim Brainard issued a very similar curfew order on June 2nd.  He presumably issued it as a part of a larger plan to cause people to take him less seriously.  His order differs from those issued by Hogsett in that its definition of "public streets" and "public places" requires that a place on private property be both accessible to and open to the general public, which I suspect was intended to prevent his curfew from being as absurdly severe and desperate as the curfews of Hogsett.  (If it was, then I appreciate the effort.)  In practice, I question how much of a difference adding "open" to "accessible" would make, but again, also in practice, I doubt that anyone in Carmel realized or cared that Brainard had declared a curfew.  (It followed his declaration of a "Disaster Emergency" the day before, which seems to have been precipitated by someone's discovery that people had posted hostile comments on social media.)

* Marion County and the City of Indianapolis have, for the most part, a single, unified government, so extending the curfew throughout Marion County extends it throughout the entirety of Indianapolis.

Tuesday, June 9, 2020

Objecting to Curfews, For One of the Numerous Compelling Reasons -- Part 1

A government-imposed curfew -- especially an executive-imposed government curfew -- should always be met with suspicion and vigilance, and whatever may be offered as the justification for it ought to be received with the greatest skepticism.  If a curfew must ever be tolerated, it should be required to satisfy the highest standards of necessity, legality, and justice.  By its nature, a curfew, when and where it is in effect, confines every person subject to it within narrow bounds, in defiance and in violation of the fundamental right of freedom of movement.

To allow people to move about freely (and to do so without having to trespass on the property of one person after another) is the very purpose of public roads and sidewalks.  We are all familiar with measures that sometimes interfere with this use of the roads (such as road or lane closures, usually to facilitate road construction or repairs or to allow for the removal of an obstruction) or sidewalks, but none of these deprive people altogether of the ability to move freely over the roads and sidewalks.  They certainly are not meant to deprive people of freedom of movement; the opposite is usually closer to the truth.

In contrast, the very purpose of a curfew is to deprive certain people -- or to deprive all people in the area, depending on the curfew in question -- of the ability to use roads, sidewalks, and any comparable public* property in exercising their rightful freedom of movement.  However harmlessly and peaceably a person might conduct him- or herself in doing this, and notwithstanding that the right to travel over the same streets and sidewalks would at all other times be as undisputed as it would be indisputable, the effect of the curfew (for the curfew's duration) is to expose the person to the threat of arrest and prosecution for a fundamentally innocent act.

Of course, I acknowledge that when a curfew is established, either legislatively or by invoking an executive power (one which some people presumably would insist has something to do with the law), those responsible intend to serve some purpose by establishing it.  I am under no misapprehension that people who put curfews into place do so without desiring that anything result from it.  When people act, I expect them to have some kind of motive; what would surprise me would be if I were to learn that they had acted without having any kind of motive whatsoever.  As a result, when a legislature or a governor (or a mayor, when no more formidable an executive is available) establishes a curfew and thereby makes utterly innocent conduct punishable as a crime, the knowledge that the person or persons who put the curfew into place had a motive will not, on its own, cause me to approve of that action than it would cause me to approve of every other action that every person has ever taken or ever will take.  Instead, I would need to consider the action itself, decide whether the motive is in its nature even capable of justifying the action, and then decide whether the motive does justify the action, which may depend on whether the motive rests on a sufficiently sound factual basis or whether it is little more than an impulse accompanied by an explanation for it constructed after the fact (something that suddenly flashed within the mind of a coward, for example, which motivated him to act).

I have many points to make, and that need to be made, about curfews -- in addition to important points that do not directly relate to curfews, which you will be able to find here once I have written about them -- but I have chosen to begin with these remarks on the odium of curfews in general.  The curfew is only one of the many weapons that executive officers of government throughout the United States have grown much too comfortable during 2020 (especially during 2020) using against the people whose rights it is their obligation to defend.  When I focus on specific points relating to curfews, however, I will want to have already made this point clear: When a curfew faces criticism, no one should ever give the benefit of the doubt to the curfew.

* I have not seen the curfew orders issued by cities in states other than Indiana, but the curfew orders that I have read that have been issued by Indiana cities claim to apply to private property in addition to public property, if that private property is "accessible to" the general public.  The orders have specifically identified "driveways" as places where people were forbidden to go.

Sunday, May 31, 2020

The People Must Often Feel Before They Can Act Right....

From the correspondence of George Washington, which I mentioned late last year, on May 10, 1786:

"It is one of the evils of democratical governments, that the people, not always seeing and frequently misled, must often feel before they can act right; but then evils of this nature seldom fail to work their own cure.  It is to be lamented, nevertheless, that the remedies are so slow, and that those, who may wish to apply them seasonably, are not attended to before they suffer in person, in interest, and in reputation."

Thursday, May 28, 2020

It's Because Some of the Governor's Emergency Powers are World War II Relics

I previously discovered the reason why so much of Indiana's "Emergency Management and Disaster Law" (IC 10-14-3) did not seem to have even been written for Indiana: much of it was in fact not written for Indiana, but was rather taken from the "Example State Disaster Act", a specimen of model legislation created by the Council of State Governments (once it was commissioned by the Nixon Administration to do so).  The iteration of the Indiana General Assembly that enacted an unsatisfactorily modified version of the example act seems to have done so in 1975, and its inattention to detail in adopting and adapting the example act is the reason why so many parts of the corresponding content in IC 10-14-3 do not fit Indiana for one reason or another.

(Because so much of the content of IC 10-14-3 refers to it as "this chapter" -- by which it means "Chapter 3" of Title 10, Article 14 of the Indiana Code -- I have decided to start referring to that chapter as "Chapter 3".  There is a risk that this will cause more confusion instead of less, but I have decided to take that chance.)

However, though many parts of IC 10-14-3 ("Chapter 3") were plainly derived from the example act, that chapter also contains quite a bit of material that the example act leaves unaccounted for.  Some of it probably is, in fact, the cumulative product of an unknown number of bills, authored by members of the Indiana General Assembly themselves, enacted over the course of several decades.  The General Assembly is certainly capable of enacting its own original legislation.  Like the material that I eventually discovered was drawn from the Example State Disaster Act, however, Chapter 3 contains sections (and parts of sections) that just don't seem to belong -- they do not fit the scheme or system of the rest of the chapter, or they cover the same subject as a different section in such a way that the other section would be redundant or useless, or they simply affect to grant the Governor such open-ended power that I find it impossible to believe that the Indiana General Assembly would have enacted it in peacetime and without its collective judgment having first been leveled by extreme fear.  What was the cause of this?

We deserve to know.  In particular, parts of IC 10-14-3-11 are alarmingly open-ended in what they say that they authorize the Governor to do.  IC 10-14-3-11(b): "In performing the governor's duties under this chapter, the governor may do the following: ... (2) Cooperate with the President of the United States and the heads of the armed forces ... in matters pertaining to emergency management and disaster preparedness, response, and recovery of the state and nation.  In cooperating under this subdivision, the governor may take any measures that the governor considers proper to carry into effect any request of the President of the United States and the appropriate federal officers and agencies for any emergency management action, including the direction or control of disaster preparations...."  If this power to "take any measures that the governor considers proper to carry into effect any request of the President of the United States" (relating to disaster preparedness, response, or recovery) is meant to be subject to any limits at all, neither IC 10-14-3-11 nor any other part of Chapter 3 hints at what those limits, if any, might be.  (I have a pretty good idea of the limits upon which I would insist, but that would be the answer to a very different question.)

I do not think that I have unrealistically high expectations of legislatures, but I do not believe that most legislatures, most of the time, would possess (to the degree that a legislature enacting anything like IC 10-14-3-11 would need) such enthusiasm for providing itself with a master and living under his dominion.  Hoping to learn when and under what circumstances Indiana's own legislature initially enacted this (as well as other, equally unwelcome provisions), I again went looking into the origins of Chapter 3.

I found what I was looking for.  This time, I was able to determine that the original source material for many sections of Chapter 3 is a collection of model statutes (especially the "Model State Emergency War Powers Act") recommended to state legislatures by the Roosevelt Administration in 1942, which were intended to allow the states to sufficiently adapt* to the severe demands and perils that accompanied World War II.  A comparison of the provisions of these model acts with the provisions of numerous sections of Chapter 3 makes it appear that somebody has decided that the extreme measures imposed as a part of "the war effort" (which, during the war, were judged necessary not as a general rule but only when considering the magnitude of the challenge those measures were meant to meet -- and that necessity was assessed from the viewpoint of a country that had not yet won the war, which still had the ability to lose the war, which remained exposed to all the dangers posed by the war) are both necessary and appropriate for Indiana to make perpetually available to every successive person serving as Governor, to activate at his or her discretion, allowing the Governor to wield those old war powers against sporadic weather disasters and, if necessary, react at a moment's notice to a virus that may or may not (as the case may be) have been anticipated for months before making its first contact with the state.  (Admittedly, it is possible for the state to face other, greater threats, but there probably will not be a threat that would, within so short a span of time that the General Assembly could not even be convened quickly enough to act, manage to be the equal of World War II.)

At least in their current forms, the parts of Chapter 3 that correspond with the "Model State Emergency War Powers Act" (as seen below) have been modified more heavily than the parts that were drawn from the Example State Disaster Act.  (This should be no surprise, given that World War II is not presently taking place.)  The versions found in Chapter 3 have been altered to contain far less that has special applicability to war and to say a bit more about the weather, terrorism, and something called an "Animal disease event", and also to remove references to air raid wardens, &c.  Still, compare IC 10-14-3-11 with Section 3 of the Model State Emergency War Powers Act, and you should be able to see that IC 10-14-3-11 and other parts of Chapter 3 have turned these extraordinary "war powers" into an ordinary tool of government (but left to the discretion of the executive) for use in emergencies of every type, scale, and duration.

I hope to find out for certain when and in what initial form Indiana enacted these model statutes.  At the moment, I can only confirm that they were enacted in 1951 (as indicated by the information that appeared under them on the state website before Indiana's "Emergency and Disaster Management Law" was recodified in 2003).  I do not yet know whether what the General Assembly enacted in 1951 replaced a version that it may have enacted during the war, which would make sense, and I do not know how any of the corresponding parts initially read.

Regardless of how they read when they were first enacted in Indiana, it is both amazing and objectionable that the versions that remain in the Indiana Code to this day retain provisions that provide for, in substance, what were supposed to be extraordinary war powers, but which now (in substance) continue to linger almost exactly seventy-five years after the war was won.

* I am not saying that I approve of all of these adaptations.  As it happens, I do not.  I am only saying that they were intended to meet the severe demands and perils of World War II.

Saturday, May 23, 2020

Regarding Indiana Governor Eric Holcomb Himself

Because it is possible that some people might otherwise manage to misunderstand some of what I have written here during the past couple of months, I write the following in order to take it out of their power to do so.

Let nothing that I have written (or may write in the future) that criticizes Indiana Governor Eric Holcomb's actions or decisions be taken as a reason to dislike him as a person.  I take the time to state this explicitly because I have raised objections to some of his actions and decisions, this year -- actions and decisions relating to the COVID-19 pandemic -- and in raising those objections, I have pointed out extraordinary and unusually serious problems with the course of policy that the Governor's office has pursued.  If someone reading what I have written were to assign the full weight of the blame for these problems to Governor Holcomb himself (and deem those problems a consequence of his character and judgment), saving nothing for the pandemic itself, that would be a very heavy weight -- and a weight that I have no interest in placing on anyone.

In my writing, my focus has been on these policies themselves, not on distributing the blame for them.  If I were, however, to assume responsibility for judging Governor Holcomb for the actions (the objectionable ones) that he has taken in relation to the pandemic, this year, I would keep in mind how important the difference is between taking those actions in 2020 (as Governor Holcomb has) and taking those actions in 2017, 2018, or 2019 (which he did not do), and I would assign to the coronavirus the quantum of blame appertaining to that difference before deciding how to allocate the remainder.

This is not to say that a pandemic justifies or excuses whatever actions might be taken or whatever decisions might be made in response to it.  It is also not meant to suggest that a governor's decisions in relation to a pandemic cannot reflect in some way on that governor's character or judgment.  My point is nothing more than that the objections that I have raised concern the policies (or the means used to implement them) themselves, but that if I had any interest in assigning blame for the problems with those policies, I would reserve for the pandemic the share that it is due.

Saturday, May 16, 2020

The General Assembly Was Supposed To Be In Session During A State of Disaster Emergency

We finally know why the part of the Indiana Code allowing the Governor of Indiana to declare a "State of Disaster Emergency" (which Governor Holcomb did declare in March in relation to the pandemic and has renewed several times since then) gives the only check on that power to the General Assembly, even though the General Assembly is only in session for a couple of months near the beginning of each year, making the check useless for most of the year: that part of the Indiana Code was neither written for Indiana nor by people familiar with Indiana.

(It was, of course, enacted by the Indiana General Assembly, or else the provisions of this "Example State Disaster Act" would not now be a part of the Indiana Code.  When the General Assembly did enact it, which I have learned that it did in 1976, it obviously wasn't paying attention.)

Like many "model" or "example" acts, the "Example State Disaster Act" was published with its own official commentary by its authors themselves.  The Example State Disaster Act's official commentary (which appears alongside the act itself in my previous post) seems to imply what I suspected: the person or persons who wrote the language to give the state legislature the power to end a "state of disaster emergency" by voting to do so expected the legislature of the state to actually be in session during the emergency.  The proposed check was intended and designed to be usable.  The commentary states, "Such provisions are included because the powers to be exercised during a disaster emergency are extraordinary ones and so should be confined to the periods intended by law."

The General Assembly that adopted this (in 1976) neglected to properly adapt it for use in Indiana, but it is nevertheless true that the people who actually planned and composed what the legislature adopted designed it with the expectation that a usable check would actually be in place.  Without that check -- and that is the position in which Indiana is currently situated -- the provisions of this act are unbalanced and dangerous.

This reasoning does not and cannot compel Governor Holcomb to call a special session of the Indiana General Assembly -- nothing can -- and the arguments that I have previously made for him to call a special session were not intended to bring the General Assembly into a position where it could put an end to this "state of disaster emergency".  (I doubt that the General Assembly would even do that -- at least for now.)  It is nevertheless a compelling additional reason why he should, exercising his own judgment, choose to call the special session that Indiana needs and deserves.

It is unnecessary for the General Assembly to actually exercise this particular power in order for its presence to be beneficial and proper.  If the current circumstances are extraordinary, and if they require the state government to take extraordinary action or exercise extraordinary powers, these are reasons why it should be done in the presence and with the supervision of the representatives of the people of Indiana, not why it should be done without them (out of fear that they will interfere).  Even to the extent that the conduct of the state government over the past two months has been properly executive or administrative in character, our elected representatives ought to be active and assembled, prepared to hear the grievances of the people of our state and possessing the ability to act to redress them.  The Executive and Administrative Departments of government, however diligent they might be, could never provide a satisfactory substitute for this.

Additionally, much of the recent conduct of our state government has not been executive or administrative at all; it has been legislative, and as overtly legislative as it could have been without actually applying that term to itself.  If the need for legislation is so urgent and undeniable as to drive our state's Executive Department to such desperation, there could never be a better or a more irresistible argument for a special session of the General Assembly -- this, and this alone, is the purpose of a special session, and this, and this alone, is why the Indiana Constitution gives the Governor the power to call special sessions.

The fact that the very emergency powers that the Governor has invoked were designed with the understanding that the General Assembly would be in session while they are in use only further exhausts what might have remained of any plausible pretense of justification for leaving our representatives inert and useless at a time when the state government insists on the necessity of it claiming and exercising such total and alien powers over the people of Indiana.

Friday, May 15, 2020

A Disaster Law Is Not Supposed To Mean A Law That Is A Disaster

While reexamining Indiana's "Disaster" law (IC 10-14-3) regularly over the past few months, I found the quantity and severity of its defects to be alarming.  (I had already read it a few years ago and was troubled by it then as well, but for some reason, I did not expect most of it to ever come into use.)

In addition to being objectionable, however, parts of it somehow felt as though they were somehow out of place -- they just don't fit.  I have already discussed that one of its provisions (IC 10-14-3-12(d)(1)), which purports to give the Governor of Indiana the power to suspend certain statutes during a "state of disaster emergency", is directly contrary to Section 26 of Indiana's Bill of Rights (as well as to the republican form of government itself).  It certainly is conceivable that legislators who had read Indiana's Constitution would vote for legislation that claims to grant a power that the constitution itself explicitly prohibits, but I still find it surprising that they would have done this so openly.

I have not mentioned that it also contains a provision, IC 10-14-3-12(a)(2) that supposedly grants the General Assembly the power to terminate a "state of disaster emergency" (once the Governor has proclaimed one) by passing a concurrent resolution to that effect.  For two reasons, I think it is strange that the General Assembly would have attempted to grant itself that power.

The first reason why I find that strange is that assuming that it is in session, the General Assembly has innate power to accomplish that legislatively (considering that the Indiana Governor's veto is little more than ornamental), even without the Indiana Code affecting to give the General Assembly a non-legislative check on one of the Governor's powers -- a power which presumably was intended to pass for "executive" in character, by the way, or else it would not have belonged in the hands of the Governor.  It would have been strange if anyone familiar with the Indiana Constitution wrote that.

The second reason why it would be strange to give the General Assembly that power is that if its purpose really was to create a "check" on the Governor's ability to maintain a "state of disaster emergency" indefinitely, then making the General Assembly the entity to which that check is entrusted would defeat that purpose.  The Indiana General Assembly is only in session for a few months of every year.  The Indiana Constitution does provide for the possibility of special sessions of the General Assembly, but only the Governor has the power to call a special session.  For most of the year, every year, the body to which IC 10-14-3-12(a)(2) gives a check on the Governor's "disaster emergency" powers is incapable of using it.  What is the purpose of creating a check that can only be used for (approximately) the first three and a half months of an odd-numbered year and the first two months of an even-numbered year?  Again, it is as though the author knew nothing about Indiana's government.

About a week ago, I started to look at the "disaster" emergency laws of a few other states, and it became immediately obvious that many of the states (including Indiana) had based their own respective versions on a common source.  I now know what that source was: the "Example State Disaster Act".

It was developed in the early 1970s by the Council of State Governments and something called "the Disaster Project", in conjunction with the Nixon Administration.  The Indiana General Assembly apparently gave little thought to it before passing it into law -- not even what little would have been required to adapt it as needed to fit Indiana's government, much less the attention that it ought to have given to how much of this "Example State Disaster Act" could be tolerable to a free state.

In the immediate future, Indiana must focus on convincing its Governor to call a special session of the General Assembly.  That way, it will have the opportunity to use the legislative power to do what can only be lawfully done by the legislative power.

After that, IC 10-14-3, which is a disaster of its own kind, should be replaced with something good.

An Additional Thought (10:31 AM EST, May 15, 2020): Concerning the Indiana General Assembly that enacted a poorly-adapted version of the "example" act discussed above: the General Assembly that took that action did so decades ago.  This weekend, I may try to identify precisely when this foreign object was dropped into Indiana law, but I am fairly confident that it happened either before or shortly after I was born, and I know for certain that it took place during the Twentieth Century.  I ask that those who are reading this refrain from angrily contacting or criticizing the present-day Indiana General Assembly or its members while under the mistaken impression that they were responsible for this.  Feel free to inform them prospectively of their responsibility to correct it, however.

Monday, May 11, 2020

Unconstitutional Even If You Can See It

Nobody intended to set these traps for you, but they exist.  I want to prepare you to recognize them.  These "traps", which are unusual among traps in that they form by accident, appear throughout the laws of the individual states and of the United States.  If you know how they work, you may be able to protect yourself from them.

The essence of the trap is this: though provisions of these laws are frequently unconstitutional -- they have often even been notoriously declared unconstitutional by an appellate court with the requisite jurisdiction -- they remain "on the books" until they are removed by the legislature by whose authority they were made.  By this, I mean that if you read your state's statutes (or those of the United States), you will see the unconstitutional parts just as you see the rest of them.

Some states, such as Pennsylvania, have been kind enough (though not always) to post notices informing us that the unconstitutionality of particular laws still found "on the books" has been settled since before I was born (as in the example found behind the previous link).  Most states, I think, have been somewhat less courteous (the magnificent State of Indiana, which is my own state, is one of the latter) to their own people or to their fellow Americans at large by flagging those of their laws that are known to be unconstitutional.  Some of the time, the unconstitutionality is pretty obvious (even when it appears in a state's own constitution), but the rest of the time, anyone reading statutes without the assistance of annotations* should remember: "laws" that you see on the page or on the screen could be unconstitutional, and those that are will not necessarily be marked with any perceptible sign of their unconstitutionality.  Be cautious.

And be aware: when a statutory provision that supposedly establishes something as a crime does not express in any useful way what conduct it criminalizes, that is a red flag.

* Annotations to statutes are helpful in that they can at least call attention to what courts have already managed to recognize as unconstitutional.  However, the information that they provide can only be as correct as the courts have been.  These annotations are designed for the use of the legal profession, for which anticipating what courts will consider the law to be in the future (by understanding how courts have previously dealt with the same or similar legal issues) is necessary in order to provide any kind of reliable assistance to clients.  For that use, the annotations serve their purpose.  However, for those who also see a need to maintain a more civic-minded, justice-seeking, truth-and-accuracy-friendly understanding of our constitutions and other law, court decisions may be neither an adequate nor an entirely reliable guide to understanding a constitution or a part of it.

Tuesday, May 5, 2020

The Primary Elections to Occur in Indiana on May 5th, 2020

I have already mentioned that Indiana Governor Eric Holcomb's Executive Order 20-07 not only lacks the authority to reschedule Indiana's 2020 primaries (it is not enough for something to be "a good idea" to make it legal) due to the familiar way in which the Indiana Constitution distributes the powers of government -- by vesting the legislative power in the Indiana General Assembly -- but is also expressly prohibited by Article 1, Section 26 of the Indiana Constitution.  I had hoped that the Governor would call a special session of the General Assembly before the (primary) Election Day established by law arrived.  This would have allowed the legislature to legitimately do the very thing that the Governor (with good reason) wanted done: reschedule the primary elections.

However, May 5th has arrived -- the date appointed by Indiana law for the 2020 primary elections -- and I am confident that there will not be elections in Indiana, today.  The Governor still can and should call the special session, because now that he has scheduled new primary elections for June 2nd, it would be desirable to make those elections legal.  The power to do that remains in the hands of the General Assembly alone, which will not have the opportunity to use that power by June without a special session.  No one can compel the Governor to call a special session against his will, but he should face the reality of what declining to do so will be.

Indiana's primary elections owe their form, their effects, and their very existence to legislation enacted by the General Assembly, which is collected into the Indiana Code.  Subject to the Indiana Constitution, these are the laws of our state, which control (among other things) when, where, how (to a surprising degree of detail), and for which elective offices primary elections are to be held, in addition to determining which political parties must submit to primary elections to choose their nominees for offices for the general election (as well as certain officeholders within those parties themselves, for their internal governance) and who may vote on a particular party's choice of nominees ... among other things.

These laws require, but also authorize, Indiana's primary elections to be held on the first Tuesday after the first Monday in May -- today.  Now, obviously, we are about to disregard the law's requirement that we hold primary elections today, which is a problem, but it is happening.  I do not find that surprising.  After all, whenever the claim is made that something (whatever it may be) is "the law" (regardless of how spurious the claim might be), if enough people and enough of the right people treat it as though it were the law, the effect of it in practice will very closely resemble authentic law.

Some people, I realize, do not consider this to be a problem -- either this or any of the numerous and far more objectionable other examples from throughout the United States (in just the past few months alone) of governments acting in direct defiance of their own laws (and of justice as well).  Nonetheless, I suspect that a fair number of those people will have reservations about the plan to hold substitute primary elections in June, in contravention of the very laws to which the primary elections owe the entirety of their existence and effect.  Such people will not necessarily have any personal objection to holding an election on the wrong date, even though the "right" date is set by state law; they personally may consider that a mere technicality.  Their discomfort with the plan would rather be with the thought of conducting our primary elections with a legal defect that we already know about and that the General Assembly (in a special session prior to the elections) can remove.  They are aware that once these elections have been held, the candidates who will have lost will have an enhanced incentive to contest the elections' legitimacy.  These candidates would not even have to prevail in their challenges in order to produce some amount of uncertainty as to the outcomes of these primaries, and they would easily make themselves an unwelcome new source of confusion, distraction, division, and chaos this year.  Is that not an outcome that we would like to avoid?

Governor, having a special session of the General Assembly right now may be a little inconvenient, but this is what its members were elected to do.  (They asked voters to elect them for this.)  The General Assembly alone possesses the legislative power of our state, and if you give the General Assembly the opportunity to exercise that power as intended, it will be able to many things that a governor lawfully cannot.  It is the right way to do this, and it is the right thing to do.

Renewing and preserving a government of laws for the State of Indiana will be worth the effort it requires.  Governor, please call the special session with no avoidable delay.

Friday, May 1, 2020

Live music is not permitted

Today, as expected, Governor Holcomb issued Executive Order 20-26.  As much could be said about this new executive order as about its predecessors (the executive orders to which it is meant to be an update), but for tonight, I will only write: What is Paragraph 10(d) supposed to be?

Later this month (though precisely when that will be depends on the location), this new executive order will finally permit restaurants in Indiana to reopen ... under certain restrictions.  Paragraph 10 of the order identifies those requirements.  It is easy enough to see what the purposes of most of the requirements are, but I do not yet understand what Paragraph 10(d) is supposed to accomplish.  It reads, "Live music is not permitted."  This, keep in mind, is one of the COVID-19 suppressing measures that is to be imposed on restaurants in Indiana once they have been suffered to reopen.  Though restaurants will be open, live music there will not be permitted, so as to better restrain the spread of the virus.

Perhaps someone has discovered that COVID-19 thrives in the presence of live music.  It is a novel virus, after all.  Maybe I should not find it so surprising to consider that it might have such an unusual characteristic.

I will allow my imagination to continue searching for answers.

After all, that may in fact be the true purpose of Paragraph 10(d): to offer the people of Indiana a mystery -- a challenge, just to keep things interesting.

I think I would respect that.

An Additional Thought (May 2, 2020): As strange as 10(d) may appear, and as much fun as it was to let the state of intensely amused curiosity (in which the experience of reading 10(d) left me) "take the wheel" in writing this post, I still will admit that it is possible that there is a reasonable explanation for 10(d), though I do not know what it could be.  That explanation could involve someone having made a reasonable mistake.  It could also involve someone having been forced to make some sort of editorial judgment call and ultimately chose the option that avoided the necessity of restructuring (and largely rewriting) the entire document, even though that choice ultimately did produce a document in which Paragraph 10(d) would make no sense to anyone reading it.  (In writing about all of that in the abstract, I had in mind the theory that the restriction imposed by Paragraph 10(d), "Live music is not permitted," was in fact meant to refer to live music in a venue having no connection whatsoever to a restaurant, but that the subject of live music was a late addition to the document, and it just would have been a big headache for some staffer to alter the document properly to create a more fitting place to insert the "live music" prohibition, if enough time remained before the deadline to accomplish that at all.  Consequently, the person who was responsible for inserting the "live music" language, who may well have been in a state of panic at the time, placed it in the paragraph covering the subject of restaurants, where its apparent meaning is not what was either expected or intended.  If true, I expect to see this bug fixed in the next update.)

Another Additional Thought (May 2, 2020): Though I expressed amusement and a certain measure of bewilderment at what I found in Paragraph 10(d), I ask readers not to interpret it as "ridicule", as I did not write it with the intention of it being in that spirit.  I further ask that readers make it a goal to either avoid or abandon (whichever would fit the reader in question) altogether the practice of taking pleasure in ridicule.  Everything will just be better that way.

Is It Really A Crime To Defy Indiana's Stay-At-Home Order?

Governor Holcomb (of Indiana) is expected this afternoon to release a modified version of the "Stay-At-Home" order for Indiana.  I hope that the new version (apart from any other objections which might be made to it, or to "Stay-At-Home" orders in general, or to the idea of governors of states issuing them without the consent either of "the governed" ourselves or of our elected representatives in our state legislatures) omits a defect that previous versions have contained.

Previous versions have claimed that IC 10-14-3-34 makes it a Class B misdemeanor to knowingly violate an order issued by the Governor under IC 10-14-3.  That claim would not hold up under any real scrutiny.  That is not the Governor's fault, of course, as he is not the author of IC 10-14-3-34.

IC 10-14-3-34 must be among the most lazily written statutory provisions ever enacted for the purpose of defining a criminal offense, though it is outdone by an older version that did not even include a mens rea requirement (which the General Assembly at some point realized ought to be included in it).

Wednesday, April 29, 2020

It Is Still Possible To Reschedule Indiana's 2020 Primary Elections Using Lawful Means

Less time remains for us to act than when I mentioned this before.

A little over a month ago, Governor Eric Holcomb of Indiana issued "Executive Order 20-07" for the purpose of rescheduling Indiana's 2020 primary elections.  This was one of the many orders that the Governor has issued in order to compensate for the drastically altered circumstances of the present pandemic.

Considered purely as a matter of policy, it was and it remains a good idea for Indiana to hold these elections on a later date than that which is set by state law.  Indiana law establishes May 5th* as the date of Indiana's 2020 primary elections.  Executive Order 20-07 affects to suspend this legal provision and replace it with another which would move the election from May 5th to June 2nd.

Unfortunately, this is inadequate to legitimately cancel the election scheduled for May 5th and authorize one to be held on June 2nd in its place.  I do not blame Governor Holcomb for trusting that Indiana's "Emergency Management and Disaster Law", Indiana Code chapter 10-14-3, would limit its grants of power to the Governor to grants of power that the Governor is constitutionally capable of possessing.  Why wouldn't it limit itself that way?  It should.  Regrettably, IC 10-14-3 is a mess (in addition to being an excellent demonstration of the kinds of laws servile-minded people will make when they get the chance).  That chapter claims to grant the Governor an array of extraordinary powers during a "State of Disaster Emergency" (which it authorizes the Governor to declare), including a power to suspend certain types of laws.  The suspending power that it pretends to grant is both hostile to our very form of government and directly prohibited by Section 26 of the Indiana Bill of Rights.  (I question whether the kind of statutes that it supposedly allows the Governor to suspend would actually include one determining when an election is to be held, but there are bigger issues that deserve our attention, right now.)

All of us are or ought to be aware of the pressure that Governor Holcomb is under, right now.  The present is a fairly unfamiliar, unusually high-stakes situation, and the Governor happens to be responsible for making a great number of decisions respecting which every available option is profoundly objectionable -- even when it is clear which options are right and which are wrong.  I consequently find it impossible to become angry with him for innocently exercising a power that he no doubt believed he had, and which I assume unknown advisers assured him that he had, to achieve something that clearly was needed: rescheduling Indiana's 2020 primaries.

However, a lawful way to reschedule the primaries exists.  The Governor can call a special session of the Indiana General Assembly (Article 4, Section 9 of the Indiana Constitution).  In addition to giving him the power to call special sessions, the Indiana Constitution (Article 5, Section 20) explicitly empowers the Governor to convene the General Assembly in a safe place if an infectious disease makes it dangerous to meet in the usual location -- a provision that reads as though it were designed for this very moment.  Once it is convened in a suitably spacious, well-ventilated meeting place, the General Assembly can use the legislative power to modify the law as needed -- the right and legitimate way.

Some would question the need to do this, as Executive Order 20-07 has almost certainly already ensured that there will, in fact, not be elections in Indiana on May 5th, 2020.  They may also question what we would gain by obtaining legal authorization for the primaries to be held on June 2nd, given that, strictly speaking, it will be possible to hold elections on that date whether the laws of Indiana sanction it or not.  Even if obtaining legality for the rescheduling of an election would not ordinarily be a sufficiently compelling reason for the state legislature to meet -- though I must insist that it would be and is -- I ask each of us, and all of us, to recognize its special importance at this moment.

Indiana's government is not alone (and was not the first) among the state governments in toppling law and justice when these might have stood in the way of contemplated measures to combat COVID-19.  Americans throughout the United States are now accustomed (whether from having been mere witnesses or actual subjects) to the fact of entire states instituting -- indefinitely -- a general suspension of liberty.  Nothing less than these words could satisfactorily characterize the general form of what has been done, though the suspension may have come with many provisos.  Subjection has become commonplace, but in how many of our states have these measures of such magnitude been carried out though nothing better than executive imitations of legislation?  In how many states has it been thought necessary even to seek the consent of the elected representatives of the governed?  We have good reason to doubt that we currently live under governments of law, much less of justice.  Indiana deserves better, as does all of America.

I believe that the Governor issued Executive Order 20-07 innocently, believing this executive order for the delay of Indiana's 2020 primary elections to be no less legal than its object was necessary.  But now that the legal inadequacy of the executive order has been brought to light, and the remedy has been identified and requested, the General Assembly must be summoned and called upon to exercise the legislative powers that a Governor may not.

It is true that, in a short-sighted kind of way, it would be more convenient to continue to rely on the vaunted authority of Executive Order 20-07 than to call a special session of the Indiana General Assembly.  However, apart from the lawlessness of that course of action (which I see as a very considerable argument against it), this is a moment when Hoosiers and Americans at large need to see an American government choose to follow the law for the simple but invaluable reason: that there remains at least one government which accepts that it is bound by the law.  We cannot control the decisions of other states, but we must decide that this is the type of government that we will have in our own.