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.

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.

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.

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."

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.

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.

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.

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.