Wednesday, April 15, 2020

From 1816 to 1851

Among the state constitutional provisions prohibiting the exercise of powers to suspend laws other than by legislative authority (which I posted yesterday), I included the version that Indiana had in its 1816 constitution.  That version, from Article 1, Section 6 of Indiana's previous (and original) constitution, reads, "That no power of suspending the operation of the laws, shall be exercised, except by the Legislature, or its authority."

That way of phrasing it, adding those three words so as to permit the suspension of the operation of the laws by the legislature "or its authority," appeared in a few additional state constitutional provisions that I listed, yesterday, and they seem to indicate an intent (for the states that have or had those provisions in their constitutions, for as long as they actually had them in their constitutions) to allow someone other than the legislatures of such states to suspend their laws, provided that the suspension is carried out in accordance with authorization for it that had been granted by the legislature.  It would be unjustifiable to assume that this necessarily would permit the legislature of such a state to grant an unconditional, open-ended authority to anyone to suspend the laws of the state (or the operation of its laws), which would itself permit the legislature to make a major change to the state's form of government without even being required to amend its constitution in order to do so.  I also note that a few states that used that sort of wording (which would allow their laws to be suspended either by the state legislature itself or by someone acting with the authority of the legislature) required that any such authority delegated by the legislature be limited to specific, defined cases.

However, none of that any longer concerns Indiana.  The current version of this rule, which, as I have stated before, now appears in Article 1, Section 26 of the Indiana Constitution, replaced the previous version when our current state constitution was adopted in 1851.  Article 1, Section 26 reads, "The operation of the laws shall never be suspended, except by the authority of the General Assembly."  It would take much more effort (and imagination) to believe that this version leave the Indiana General Assembly the latitude to confer upon somebody else the lawful power to turn our state's laws off and on at will.  That possibility is even less plausible considering that this wording of Article 1, Section 26 was chosen as a replacement for the wording of its 1816 counterpart: the change eliminates the "or its authority" language.  In addition to this, we should never forget that the entire purpose of these "suspension" clauses is to prevent the executive from assuming a power to suspend the laws, and, ultimately, to ensure that the power to alter the laws either temporarily or indefinitely remains in the hands of the legislature -- where it is supposed to be.

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