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.